Communications Act 2015

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Communications Act 2015


Act 13 of 2015



C
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COMMUNICATIONS ACT 2015


Communications Act 2015 Arrangement of Sections





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C
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COMMUNICATIONS ACT 2015

Arrangement of Sections

Section

PART I – PRELIMINARY 11

1 Short title and commencement............................................................................. 11
2 Interpretation ........................................................................................................ 11
3 Territorial application .......................................................................................... 17
4 Act binds the Crown ............................................................................................ 17

PART II – OBJECTS 17

5 Objects ................................................................................................................. 17

PART III - ESTABLISHMENT AND GENERAL ADMINISTRATION 18

6 Minister responsible for communications ............................................................ 18
7 Ministry responsible for communications ........................................................... 18
8 Powers and functions of the Ministry .................................................................. 19
9 Chief Executive Officer of the Ministry .............................................................. 19
10 Staff of the Ministry ............................................................................................. 19

PART IV - MINISTERIAL POWERS 20

11 Powers to direct the Chief Executive Officer ...................................................... 20
12 Ministerial declaration ......................................................................................... 20
13 Powers to make guidelines................................................................................... 20
14 Delegation of powers to the Chief Executive Officer .......................................... 20
15 Assistance from advisory committees ................................................................. 20

PART V - THE REGULATOR 21

16 Functions .............................................................................................................. 21
17 Powers .................................................................................................................. 21
18 Power to determine fees ....................................................................................... 22

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19 Regulator may make secondary instruments ........................................................ 22
20 Regulator may make guidelines ........................................................................... 22
21 Ministerial policies and international obligation .................................................. 23
22 Regulatory principles and burden of regulation ................................................... 23
23 Consultation ......................................................................................................... 23
24 Publication ............................................................................................................ 24
25 Assistance from advisory committees .................................................................. 26

PART VI - LICENSING 26

DIVISION 1- LICENSING REQUIREMENT 26

26 Supply of communications services ..................................................................... 26
27 Network operator licence required by owner or operator .................................... 26
28 Network facilities and communications services beyond the network

boundary ............................................................................................................... 27
29 Exempt communications services ........................................................................ 27
30 Supply without authorisation is an offence .......................................................... 27

DIVISION 2 - NETWORK OPERATORS 27

31 Eligibility for a network operator licence ............................................................. 27
32 Network operators ................................................................................................ 28
33 Standard licence conditions .................................................................................. 28
34 Special licence conditions for network operators ................................................. 28
35 Compliance with licence conditions..................................................................... 29
36 Network operator licence fees .............................................................................. 29
37 Term of network operator licences ....................................................................... 30
38 Suspension, amendment of revocation of a licence.............................................. 31
39 Surrender of network operator licence ................................................................. 32
40 Register of network operator licences .................................................................. 32

DIVISION 3 - SERVICE PROVIDERS 32

41 Service providers .................................................................................................. 32
42 Service provider conditions .................................................................................. 33
43 Service provider registration fees ......................................................................... 33
44 De-registration or suspension of a service provider ............................................. 34
45 Withdrawal of registration as a service provider .................................................. 35
46 Register of service providers ................................................................................ 35

DIVISION 4 - OTHER MATTERS 36

47 Licensing rules ..................................................................................................... 36
48 No rights to use radio frequency spectrum under Division 2 or 3 ........................ 36
49 Licences is a unilateral grant of permission ......................................................... 36
50 No exclusive licences ........................................................................................... 37
51 Exemption from licence fees in the public interest .............................................. 37
52 Regulator not to discriminate ............................................................................... 37

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PART VII - CONSUMER PROTECTION 37

DIVISION 1 - CONSUMER STANDARDS 37

53 Consumer standards ............................................................................................. 37
54 Matters for consumer standards ........................................................................... 38
55 Consumer law not to be excluded ........................................................................ 38
56 False, misleading or deceptive conduct and representations ............................... 38
57 Consumer complaints .......................................................................................... 39

DIVISION 2 - TARIFFS FOR SERVICES 40

58 Application of Division 2 .................................................................................... 40
59 Tariffs for retail communications services........................................................... 40
60 Licensee to provide services in accordance with tariffs ...................................... 40
61 Variation or revocation of tariffs ......................................................................... 40
62 Publication of tariffs for retail communications services .................................... 41
63 Register of tariffs ................................................................................................. 41

DIVISION 3 - REGULATION OF TARIFFS 41

64 Rules about tariffs ................................................................................................ 41

DIVISION 4 - UNIVERSAL SERVICE REGIME 42

65 Universal service regime...................................................................................... 42
66 Matters to be considered in a universal service regime ....................................... 42
67 Universal service rules ......................................................................................... 42

PART VIII - TECHNICAL REGULATION 43

DIVISION 1 - NUMBERING AND ELECTRONIC ADDRESSING 43

68 Responsibility for numbering .............................................................................. 43
69 Responsibility for electronic addressing .............................................................. 43
70 Numbering plan and numbering rules .................................................................. 44
71 Register of numbering assignments ..................................................................... 45
72 Emergency calls ................................................................................................... 45
73 Number portability ............................................................................................... 45
74 Directories ............................................................................................................ 46
75 No property rights in numbers ............................................................................. 46
76 Technical standards .............................................................................................. 46

DIVISION 2 - TECHNICAL STANDARDS 47

77 Matters for technical standards ............................................................................ 47
78 Technical rules ..................................................................................................... 47
79 Register of customer equipment .......................................................................... 47
80 Mutual recognition agreements............................................................................ 48
81 Customer cabling ................................................................................................. 48
82 Disconnection of customer equipment ................................................................. 48
83 Request for the Regulator to direct licensees ....................................................... 48
84 Regulator may direct the provision of communications services ........................ 48

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DIVISION 3 - RADIO FREQUENCY SPECTRUM MANAGEMENT 49

85 Regulator to manage radio frequency spectrum ................................................... 49
86 National Spectrum Plan ........................................................................................ 49
87 Determination of the National Frequency Allocation Table ................................ 50
88 Contents of the National Table of Frequency Allocations ................................... 50
89 Radio spectrum rules ............................................................................................ 50
90 Radio spectrum licences ....................................................................................... 51
91 Assignments of radio frequency spectrum ........................................................... 52

DIVISION 4 - MANAGEMENT OF SATELLITE ORBITAL SLOTS 52

92 Management of satellite orbital slots.................................................................... 52

PART IX - SOCIAL REGULATION 52

DIVISION 1 - CONTENT APPLICATIONS SERVICES 52

93 Application of Division 1 of Part VIII ................................................................. 52
94 Broadcasting and content standards ..................................................................... 52
95 Matters for broadcasting and content standards ................................................... 52
96 Ministry may direct a licensee to comply ............................................................ 53
97 Ministry to have enforcement powers of the Regulator ....................................... 53
98 Censorship ............................................................................................................ 53
99 Defamation Act .................................................................................................... 53
100 Religion ................................................................................................................ 54
101 National Interest ................................................................................................... 54
102 Education .............................................................................................................. 54
103 National emergency.............................................................................................. 54
104 Political and controversial content ....................................................................... 54
105 Offence ................................................................................................................. 54

DIVISION 2 - INTERNET SERVICE PROVIDERS AND HOSTING
SERVICE PROVIDERS 55

106 Take-down notices ............................................................................................... 55
107 Opt-out filtering.................................................................................................... 56
108 Mandatory filtering .............................................................................................. 57
109 Internet service providers shall report child pornography .................................... 57

PART X - ECONOMIC REGULATION 58

DIVISION 1 - GENERAL COMPETITION PRACTICE 58

SUBDIVISION A – GENERAL 58

110 Definitions ............................................................................................................ 58
111 Application of this Division ................................................................................. 58
112 Communications services markets ....................................................................... 59
113 Substantial market power ..................................................................................... 60
114 Competition guidelines ........................................................................................ 61

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SUBDIVISION B – PROHIBITIONS 61

115 General prohibition on anti-competitive conduct ................................................ 61
116 Anti-competitive agreements ............................................................................... 61
117 Prohibition on anti-competitive practices ............................................................ 62
118 Prohibition on misuse of substantial market power ............................................. 63
119 Prohibition on discrimination .............................................................................. 63
120 Consolidations ..................................................................................................... 64
121 Authorisation ....................................................................................................... 65

DIVISION 2 - ACCESS TO DECLARED SERVICES 66

SUBDIVISION A – DECLARED SERVICES 66

122 Objectives of Division 2 ...................................................................................... 66
123 Public inquiry into declared services ................................................................... 66
124 Declared services recommendation ..................................................................... 68
125 Ministerial declaration of an eligible service ....................................................... 68
126 Declaration criteria .............................................................................................. 69
127 Deemed declared services .................................................................................... 70
128 Register of declared services ............................................................................... 70

SUBDIVISION B – SUPPLY OF DECLARED SERVICES 71

129 Access to facilities and services ........................................................................... 71
130 Standard obligations for supply of declared services ........................................... 72
131 Terms of access .................................................................................................... 73
132 Preparation of interconnection and access rules .................................................. 73

SUBDIVISION C – ARBITRATION AND NEGOTIATED AGREEMENTS 74

133 Arbitration ............................................................................................................ 74
134 Negotiated agreements ......................................................................................... 75

SUBDIVISION D – REFERENCE OFFERS 76

135 Submission of proposed reference offers ............................................................. 76
136 Review of proposed reference offers ................................................................... 76
137 Reassessing and varying reference offers ............................................................ 77
138 Publication and entry into approved reference offers .......................................... 78

SUBDIVISION E – REGISTERS 78

139 Register of approved reference offers .................................................................. 78
140 Register of access agreements ............................................................................. 79
141 Register of agreements for the supply of eligible services .................................. 79

DIVISION 3 - COMMUNICATIONS SECTOR PERFORMANCE
MONITORING 79

142 Regulator to monitor licensees............................................................................. 79
143 Reporting to Minister ........................................................................................... 79
144 Contents of report ................................................................................................ 79

DIVISION 4 - INQUIRIES AND INVESTIGATIONS. 79

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145 Minister may direct Ministry or Regulator to hold inquiry .................................. 79
146 Ministry may initiate an inquiry ........................................................................... 80
147 Minister may make rules of inquiry ..................................................................... 80

DIVISION 5 - APPLICATION OF CONSUMER PROTECTION ACT 80

148 Consumer Protection Act ..................................................................................... 80

PART XI - MISCELLANEOUS 81

DIVISION 1 - INSTALLATION OF COMMUNICATIONS FACILITIES,
ACCESS TO LAND, ETC. 81

149 Power of entry ...................................................................................................... 81
150 Public traffic not to be interrupted ....................................................................... 81
151 Entry by day and notice to be given ..................................................................... 82
152 Notice of entry when owner cannot be found ...................................................... 82
153 Entry without notice for inspection and repair ..................................................... 82
154 Compensation ....................................................................................................... 82
155 Removal of trees etc. damage to communications facilities ................................ 83
156 Accidental damage to communications facilities ................................................. 83
157 Damage by careless driving ................................................................................. 83
158 In addition to penalty any damage to be made good ............................................ 83

DIVISION 2 - PENALTY AND OFFENCES 84

159 General penalty .................................................................................................... 84
160 Civil actions ......................................................................................................... 84
161 Other remedies ..................................................................................................... 85
162 Infringement notices ............................................................................................. 86
163 Enforceable undertakings ..................................................................................... 87
164 Desist orders and remedial directions .................................................................. 88
165 Third party actions .............................................................................................. 89
166 Offence by body corporate ................................................................................... 89
167 Liability for acts of employees and agents ........................................................... 90
168 General information gathering power .................................................................. 90
169 Investigatory power .............................................................................................. 91
170 Right of entry for inspection ................................................................................ 93
171 Offence related to searches and seizures .............................................................. 94
172 Ministry may authorise release of things seized .................................................. 94

DIVISION 3 – SAFE HARBOUR PROTECTIONS 94

173 Providing access or transmission ......................................................................... 94
174 Hosting content .................................................................................................... 95
175 Caching ................................................................................................................ 95
176 Linking ................................................................................................................. 96
177 No liability for removing or disabling access ...................................................... 96
178 No monitoring obligation ..................................................................................... 96
179 Definitions ............................................................................................................ 96

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DIVISION 4 - REVIEW MECHANISMS 97

180 Review options .................................................................................................... 97
181 Reconsideration of decisions by the Regulator .................................................... 98
182 Appeals panel ....................................................................................................... 99
183 Review of a decision by the appeals panel .......................................................... 99
184 Review of reviewable Ministerial decisions ...................................................... 101
185 Service of notices ............................................................................................... 101

DIVISION 5 - REGULATIONS AND TRANSITIONAL PROVISIONS 102

186 Regulations ........................................................................................................ 102
187 Licence transition ............................................................................................... 102
188 Other transitional arrangements ......................................................................... 103
189 Repeal ................................................................................................................ 103

SCHEDULE 1 104

STANDARD LICENCE CONDITIONS 104

SCHEDULE 2 106

STANDARD SERVICE PROVIDER CONDITIONS 106





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C
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COMMUNICATIONS ACT 2015

Act 13 of 2015

AN ACT TO REGULATE COMMUNICATIONS SERVICES IN TONGA

I assent,

TUPOU VI,

18th February 2016.

BE IT ENACTED by the King and Legislative Assembly of Tonga in the

Legislature of the Kingdom as follows:

PART I – PRELIMINARY

1 Short title and commencement

(1) This Act may be cited as the Communications Act 2015.

(2) This Act shall come into force on such date as Cabinet may proclaim, and

Cabinet may proclaim different dates for the coming into force of different

sections of this Act.

2 Interpretation

(1) In this Act, unless the context otherwise requires:

“access agreement” means an agreement for the supply of a declared service;

“advertising content” means content which is used to promote a product or

service or the interests of a person whether or not for payment;

“appeals panel” has the meaning given under section 183(4);

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“approved reference offer” means a proposed reference offer approved under

sections 136(4)(a) or 137(3)(b) or determined under section 136(6)(a);

“broadcasting service” means a service that delivers television programs or

radio programs (including advertising or sponsorship matter, whether or not of

a commercial kind, and matter, the primary purpose of which is to entertain, to

educate or to inform an audience) to persons having equipment appropriate for

receiving that service, whether the delivery uses the radio frequency spectrum,

cable, optical fibre, satellite or any other means or a combination of those

means, but does not include:

(a) a service (including a teletext service) that provides no more than data,

or that provides visual images (whether or not combined with sounds)

that consist predominantly of alphanumeric text;

(b) a service for delivering subscription content;

(c) an internet service; or

(d) a service or a class of service of a kind specified in a declaration made

by the Minister as not falling within this definition;

“business day” means a day other than a Saturday, Sunday or public holiday

under the Public Holidays Act;

“cabling” means a wire, cable, optical fibre, tube, conduit, waveguide or other

physical medium used, or for use, as a continuous artificial guide for or in

connection with carrying communications by means of guided electromagnetic

energy;

“Chief Executive Officer” means the Government chief executive officer

responsible for communications;

“communications” means any communication, whether between persons and

persons, things and things or persons and things, in the form of sound, data,

text, visual images, signals or any other form or any combination of those

forms;

“Communications Commission” means the commission established under

section 3 of the Communications Commission Act 2015;

“communications facility” means a network facility or a passive facility;

“communications network” means a system, or series of systems, that carries,

or is capable of carrying, communications by means of guided or unguided

electromagnetic energy;

“communications service” means a service for carrying communications by

means of guided or unguided electromagnetic energy (including a

broadcasting service);

“competitive process” means an auction, tender, commercial negotiations, or

market-based allocation process;

“computer data” has the meaning given in the Computer Crimes Act 2003;

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“Consumer Affairs Division” means the entity of that name established under

the Consumer Protection Act 2000;

“consumer standards” mean consumer standards made by the Regulator under

section 53;

“content” means text, sound, still picture, moving picture or other audiovisual

representation, tactile representation or any combination of the preceding which

is capable of being created, manipulated, stored, retrieved or communicated

electronically, however, organised, formatted or programmed for delivery to

end users;

“content applications service” means:

(a) a broadcasting service (including a service that delivers content that

enhances or provides information about content delivered by a

broadcasting service);

(b) a service for delivering subscription content;

(c) an on-line information service (for example, a dial-up information

service or audio-text service);

(d) an on-line entertainment service (for example, a video-on-demand

service or an interactive computer game service);

(e) any other on-line service (for example, an education service provided by

the government); or

(f) a service or a class of service of a kind specified in a declaration made

by the Minister as falling within this definition, but which shall not

include an internet service.

“content standards” mean content standards made by the Minister in

accordance with section 94;

“customer” means a person who contracts with a licensee for a

communications service;

“customer cabling” means cabling that is used, installed ready for use or

intended for use on the customer side of the network boundary;

“customer equipment” means equipment, including cabling, hardware and

software, that is used, installed ready for use or intended for use on the customer

side of the network boundary and includes customer cabling;

“declaration criteria” has the meaning given in section 126;

“declaration recommendation” means a recommendation of the Regulator

under section 124(1);

“declared service” means a service declared under section 125 or deemed to

be declared under section 127;

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“eligible revenues” means, in respect of a financial year, revenues derived

either directly from end users or indirectly (for example, through advertising

revenues) from the provision of communications services in Tonga net of:

(a) taxes;

(b) amounts paid to network operators for interconnection; and

(c) amounts paid to international correspondents for the origination or

termination of international calls;

“eligible service” means a wholesale access service or a facilities access

service;

“facilities access service” means the supply of access to, or use of, a passive

facility, but only to the extent that the passive facility may be used to supply a

communications service;

“hosting service provider” means a person who provides to the public a

service that stores, in the Kingdom, computer data, other than:

(a) voicemail messages, video mail messages, email messages, SMS

messages or MMS messages; or

(b) other content specified in a declaration made by the Minister for the

purposes of this definition;

“infringement notice period”has the meaning given in section 162(3)(c)(ii);

“infringement notice provision”means a provision of this Act that has been

specified to be an infringement notice provision under section 162(7);

“interconnection”means the physical and logical linking of communications

networks of different licensees in order to allow the customers of one licensee

to communicate with customers of the same or another licensee, or to access

the communications services of another licensee;

“interconnection and access rules” means rules made by the Regulator under

section 132;

“internet service” means a communications service that enables end users to

access the internet;

“internet service provider” means a person who supplies, or proposes to

supply, an internet service to the public;

“licensee” means a network operator or service provider;

“licensing rules” means rules made by the Regulator under section 47;

“Minister” means the Minister responsible for communications;

“Ministry” means the Ministry responsible for communications;

“National Frequency Allocation Table” means the frequency allocation table

of that name developed by the Regulator under section 87;

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“National Spectrum Plan” has the meaning given in section 86;

“network boundary” means, unless otherwise declared by the Minister:

(a) the first equipment socket in a private residence;

(b) the main distribution frame in a building; or

(c) the point at which a network facility receives communications from or

sends communications to an end user;

“network facility” means any element or combination of elements of physical

infrastructure used principally for, or in connection with, the provision of

communications services, but does not include customer equipment or a

passive facility;

“network operator” means a person who holds a network operator licence;

“network operator licence” means a licence granted under section 32;

“numbering plan” means the numbering plan made by the Regulator under

section 70;

“numbering rules” means rules made by the Regulator under section 70;

“passive facility” means any passive infrastructure or building, including a

switching equipment location, mast site, tower, pole, duct or other underground

facility, that is used or is capable of being used for communications or for any

operation directly connected with communications, but does not include

customer equipment;

“proposed reference offer” means a reference offer submitted to the Regulator

under sections 135, 136 or 137;

“providing licensee”means, in relation to a declared service, a licensee that

supplies that declared service whether to itself or to other persons;

“radio frequency spectrum” means the continuous range of electromagnetic

wave frequencies up to and including a frequency of 420 terahertz;

“radio spectrum licence” means a licence to use radio frequency spectrum

under the radio spectrum rules;

“radio spectrum rules” means rules made by the Regulator under section 89;

“radiocommunications service” means a communications service that uses

the radio frequency spectrum;

“Regulator” means the Communications Commission;

“requesting licensee” means, in relation to a declared service, a licensee who:

(a) wants access to the service;

(b) wants to change some aspect of the licensee’s existing access to the

service; or

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(c) has access to the service in circumstances where the providing licensee

of the service wants to change some aspect of the licensee’s access to the

service;

“reviewable decision” has the meaning given in section 180(3);

“reviewable Ministerial decision”" has the meaning given in section 180(4);

“sensitive information” has the meaning given under section 24(5);

“service provider” means a person registered under section 41(2);

“special licence condition” means a licence condition imposed in accordance

with section 34;

“subscription content”means content which is made available to an end user

only upon payment of a subscription fee;

“tariff rules” means rules made by the Regulator under section 64;

“technical standards” mean technical standards made or adopted by the

Regulator under section 76;

“universal service agreement” means an agreement entered into by a licensee

in accordance with the universal service rules;

“universal service facility” means a communications facility installed in

accordance with a universal service agreement;

“Universal Service Fund” has the meaning given in the Communications

Commission Act 2015;

“universal service regime” means the system described in section 65;

“universal service rules” means rules made by the Regulator under section

67(1);

“valuable state resource” means part the radio frequency spectrum where the

demand for that spectrum is likely to exceed supply, as identified in the

National Spectrum Plan and as determined to be valuable resources of the

Kingdom in a declaration made by the Minister acting on the recommendation

of the Regulator;

“webpage” means a file of content accessible on the world wide web by

requesting a single URL (uniform resource locator); and

“wholesale access service” means:

(a) a communications service; or

(b) a service that facilitates the supply of a communications service

(excluding intellectual property except to the extent that it is an integral

but subsidiary part of the communications service),

where that service is supplied to another licensee (except where it is

supplied to the other licensee for that licensee’s own personal use).

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(2) Section 10(a) and sections 10(c) to (f) of the Interpretation Act apply to the
instruments referred to in sections 12, 13, 19 and 20 of this Act as if those

instruments were regulations.

3 Territorial application

(1) This Act (including all regulations and instruments made under it) shall apply

within the geographical limits of the Kingdom and its territorial waters.

(2) Notwithstanding sub-section (1), this Act (including all regulations and

instruments made under it) shall apply to any person beyond the geographical

limits of the Kingdom or its territorial waters provided that such person —

(a) is a licensee or holds a radio spectrum licence under this Act; or

(b) provides a service or owns or operates communications facilities that are

subject to licensing under this Act in a place within the Kingdom.

(3) For the purpose of this section, a "place" means a point of any nature or

description whether on land, in the atmosphere, in outer space, underground,

underwater, at sea or anywhere else.

(4) For the purposes of this section, a place that is —

(a) in or below the stratosphere; and

(b) within the geographical limits of the Kingdom and its territorial waters,

is deemed to be a place within the Kingdom.

4 Act binds the Crown

Except as otherwise provided, this Act binds the Crown.

PART II – OBJECTS

5 Objects

(1) The objects of this Act are —

(a) to establish a communications licensing and regulation framework in

support of the national development policy objectives;

(b) to establish the powers and functions of the Ministry

of Communications;

(c) to establish the powers and functions of the Regulator;

(d) to establish the powers and procedures for the administration of this Act;

(e) to establish and to promote fair and sustainable competition in the supply,

installation, maintenance and operation of customer equipment and

related services;

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(f) to promote fair and sustainable competition in the supply and provision

of network facilities, passive facilities and communications services;

(g) to promote and to protect the interests of consumers of

communications services;

(h) to promote the efficiency of licensees;

(i) to ensure the safety, quality and international compatibility of services

through technical standards; and

(j) to pursue and promote the national communications sector

policy objectives.

(2) The national communications sector policy objectives are —

(a) to ensure the existence of a sustainable, performing and financially viable

communications sector;

(b) to maximise the availability of communications infrastructure;

(c) to provide communications infrastructure to support new industry

investment; and

(d) to maximise strategic and economic benefits from

communications assets.

PART III - ESTABLISHMENT AND GENERAL
ADMINISTRATION

6 Minister responsible for communications

(1) There shall be a Minister responsible for communications whose functions

shall be:

(a) to exercise general supervision and control over all matters relating to

the communications sector in the Kingdom;

(b) to perform functions and exercise powers conferred on the Minister

under this Act, the Tonga Broadcasting Commissions Act (Cap. 100), the

Telegraph Act (Cap. 99), the Tonga Communications Corporation Act

2000 and other applicable laws;

(c) to issue written policy directions to the Regulator on matters affecting

the communications sector; and

(d) to perform such other functions and exercise such other powers as are, or

may from time to time be, lawfully conferred upon the Minister.

7 Ministry responsible for communications

There shall be a Ministry responsible for communications within the supervision,

responsibility and control of the Minister.

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8 Powers and functions of the Ministry

The Ministry shall have the authority to undertake the following functions —

(a) to advise the Minister on all matters concerning the national communications

sector policy objectives and policies;

(b) to perform functions and exercise powers conferred on the Ministry under this

Act and other applicable laws;

(c) to oversee and manage the allocation of the Government's orbital satellite slot

interests;

(d) to oversee and manage the registration and allocation of domain names under

Tonga’s internet country code top-level-domain (ccTLD) ".to";

(e) to ensure the observation and enforcement of international communications

conventions and practices;

(f) to liaise with foreign governments on communications sector and other related

matters;

(g) to enforce section 96 of this Act;

(h) to perform such other functions or exercise such other powers conferred on the

Ministry by this Act; and

(i) subject to the powers and functions conferred on the Regulator under this Act,

to perform any other functions consistent with the objects of this Act, as notified

by the Minister from time to time.

9 Chief Executive Officer of the Ministry

(1) There shall be appointed a Chief Executive Officer, who shall be the head of

the Ministry.

(2) The Chief Executive Officer shall perform the functions and exercise the

powers vested in him and the Ministry under this Act and other applicable laws.

10 Staff of the Ministry

(1) All officers and employees of the Ministry shall be appointed under the Public

Service Act.

(2) No officer or employee of the Ministry shall be personally responsible for any

acts or omissions in performing the Ministry’s functions, exercising the

Ministry’s powers or discharging the Ministry’s duties except in the case of

gross negligence or misconduct.

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PART IV - MINISTERIAL POWERS

11 Powers to direct the Chief Executive Officer

The Minister may issue directions to the Ministry on the exercise of the Ministry's

power and the performance of the Ministry’s functions under this Act and other

applicable laws, consistent with those Acts and subject to the powers and functions

conferred on the Regulator under this Act.

12 Ministerial declaration

The Minister may make declarations on any matter specified as being subject to the

Minister's declaration under this Act, the Telegraph Act (Cap. 99) and other

applicable laws.

13 Powers to make guidelines

(1) The Minister may make guidelines on any matter which the Minister may from

time to time consider necessary for giving full effect and for due administration

of the Minister’s powers, the performance of the Minister’s functions or the

discharge of the Minister’s duties under this Act, the Telegraph Act (Cap. 99)

and other applicable laws.

(2) The Minister may direct the Ministry to undertake the Minister's role and duties

under sub-section (1).

14 Delegation of powers to the Chief Executive Officer

(1) Subject to the approval of the Cabinet, the Minister may delegate functions,

powers, authority and duties to the Chief Executive Officer for specific

purposes under this Act, the Telegraph Act (Cap. 99) and other applicable laws.

(2) All delegations made under sub-section (1), shall be made in writing.

(3) The Minister may, either generally or in any particular case, appoint any person

who is not an officer or employee of the Ministry to render such assistance as

the Minister may specify, in the exercise of the Minister’s powers, the

performance of the Minister’s functions or the discharge of the Minister’s

duties under this Act, the Telegraph Act (Cap. 99) and other applicable laws.

15 Assistance from advisory committees

The Minister may, either generally or in any particular case, appoint persons as the

Minister may determine, who may or may not be officers or employees of the

Ministry, to form an advisory committee to render such assistance as the Minister may

specify in the exercise of the Minister’s powers, the performance of the Minister’s

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functions or discharge of the Minister’s duties under this Act, the Telegraph Act (Cap.

99) and other applicable laws.

PART V - THE REGULATOR

16 Functions

The Regulator shall have the following functions —

(a) to advise the Minister on all matters concerning the national communications

sector policy objectives and policies;

(b) to monitor, and report to the Minister on, all significant matters relating to the

communications sector and the licensing of persons that provide

communications services;

(c) to give effect to policy directions of the Minister as required by this Act;

(d) to be responsible for control, planning, administration, management and

licensing of the radio frequency spectrum in the Kingdom;

(e) to be responsible for control, planning, administration, management and

assignment of numbering of communications services;

(f) to manage Tonga’s input into the setting of international standards for

telecommunications;

(g) to make available to the public information about matters relating to the

communications sector;

(h) to impose, collect and administer fees and levies imposed by this Act;

(i) to enforce the provisions of this Act other than as provided in section 96;

(j) to perform functions and exercise powers conferred on the Regulator by the

Communications Commission Act;

(k) to perform such other functions or exercise such other powers conferred on the

Regulator by this Act; and

(l) to perform any other functions consistent with the objects of this Act as

specified in a declaration made by the Minister.

17 Powers

The Regulator shall have the power to do all things necessary or convenient to be done

for or in connection with the performance of its functions under this Act, including

but not limited to —

(a) the power to enter into universal service agreements in accordance with this

Act;

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(b) the power to accept enforceable undertakings;

(c) the power to institute proceedings for recovery of pecuniary penalty and apply

for other orders in a Court of competent jurisdiction, issue desist orders and

remedial directions and take any other enforcement action permitted under this

Act; and

(d) the power to determine fees in accordance with section 18.

18 Power to determine fees

(1) The Regulator may determine the following fees and levy —

(a) fees for any applications required under this Act;

(b) licence fees and registration fees determined in accordance with sections

36 and 43;

(c) any universal service levy determined in accordance with the universal

service rules;

(d) fees determined in accordance with the numbering rules;

(e) fees determined in accordance with the radio spectrum rules; and

(f) fees for supplying or making copies of documents.

(2) Any fees prescribed under this Act shall be calculated and applied on a

transparent, non- discriminatory, and competitively neutral basis.

(3) Fees prescribed under sub-sections (1)(a),(d) and (f) shall as far as practicable,

be based on the costs incurred by the Regulator in the performance of a function

or exercise of a power to which the relevant fee relates; and

(4) Fees prescribed under sub-sections(1)(b),(c) and (e) shall be set in accordance

with the relevant provision.

19 Regulator may make secondary instruments

The Regulator may make rules, standards, declarations or any other instruments the

Regulator is expressly permitted to make under this Act.

20 Regulator may make guidelines

The Regulator may make guidelines on any matter which the Regulator may from

time to time consider necessary for giving full effect to and for due administration of

the Regulator’s powers, the performance of the Regulator’s functions or the discharge

of the Regulator’s duties under this Act and other applicable laws.

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21 Ministerial policies and international obligation

(1) The Regulator shall, when performing its functions and exercising its powers

under this Act:

(a) give effect to, and not perform its functions or exercise its powers in a

manner that is inconsistent with, general policy directions notified to the

Regulator by the Minister in writing, to the extent they are consistent

with this Act; and

(b) have regard to obligations under any international treaties or conventions

to which the Kingdom is a party or any funding arrangements with

international bodies.

(2) The Regulator shall publish on its website all policies notified to it under sub-

section (1)(a).

22 Regulatory principles and burden of regulation

(1) The Regulator shall, when performing its functions and exercising its powers

under this Act:

(a) have regard to the objects of this Act;

(b) act transparently and fairly;

(c) refrain from taking any regulatory action where it reasonably anticipates

that effective competition in the communications sector shall be

sufficient to achieve the object of the regulatory action within a

reasonable period of time; and

(d) ensure that the burden of any regulatory action is proportionate to its

purpose and no more than reasonably necessary to achieve the object of

the regulatory action.

(2) The Regulator shall:

(a) perform its functions and exercise its powers without favour, prejudice

or political or commercial interference; and

(b) on and from the day that this Act comes into force, be an independent,

autonomous and impartial body.

23 Consultation

(1) The Regulator may carry out consultations with interested persons as it

considers appropriate.

(2) Where this Act requires the Regulator to carry out a consultation under this

section, the Regulator shall carry out that consultation in accordance with

guidelines made by the Regulator except where that consultation has been

deemed under section 188(2) to have been carried out.

(3) The Regulator shall ensure that the guidelines made under sub-section (2):

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(a) provide persons likely to be affected by the Regulator’s decision a

reasonable opportunity to make submissions on the matter; and

(b) where appropriate, require the Regulator to publish any decision or draft

decision (including reasons).

(4) The Regulator shall take into account any submission that it receives in

accordance with the guidelines made under sub-section (2). The Regulator is

not prohibited from taking into account a submission which was not received

in accordance with the guidelines.

(5) The Minister may direct the Regulator to carry out a consultation under

this section.

24 Publication

(1) Subject to sub-sections (3) and (4), the Regulator shall publish:

(a) this Act;

(b) all regulations, rules, declarations, standards and other secondary

instruments made under this Act (other than guidelines);

(c) any guidelines the Regulator considers it in the public interest to publish;

(d) a list of all network operators and service providers (including any

special licence conditions imposed under section 34);

(e) the numbering plan under section 70;

(f) the register of assigned numbers under section 55;

(g) the register of approved types of customer equipment under section 79;

(h) a register of all assignments of radio frequency spectrum under

section 91(2);

(i) a register of authorisations under section 121;

(j) the register of declared services under section 128;

(k) the register of approved reference offers under section 139;

(l) the register of access agreements under section 140;

(m) a register of decisions of the appeals panel (including reasons for the

decisions) under section 183;

(n) any decision (including reasons) made following a consultation under

section 23;

(o) any submissions made during a consultation under section 23; and

(p) such other documents information as the Regulator is required to publish

under this Act or by a declaration made by the Minister.

(2) Where the Regulator is required to publish a document, the Regulator shall

publish the document on its website, and may also publish the document in such

other manner as the Regulator considers appropriate.

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(3) Neither the Regulator nor any employee or agent of the Regulator shall

knowingly publish or disclose sensitive information to any person, knowingly

allow sensitive information to be disclosed to any person, or use sensitive

information for personal advantage except:

(a) with the consent of the person who provided the sensitive information; or

(b) where the Regulator is required by law to publish or disclose that

information.

(4) Sub-section (3) shall also apply to a person who publishes, discloses or uses

sensitive information after ceasing to be a member, employee or agent of

the Regulator.

(5) Subject to sub-sections (6) to (8), “sensitive information” means information

that is:

(a) submitted or disclosed to the Regulator by a person;

(b) not already in the public domain; and

(c) provided to the Regulator in accordance with sub-section (9).

(6) Sensitive information does not include information that the Regulator

reasonably determines shall not be regarded as sensitive information having

regard to:

(a) the likelihood and seriousness of any harm to the person to which the

information relates of disclosing that information; and

(b) the Regulator’s duty to act transparently and fairly in performing its

functions and exercising its powers under section 22.

(7) The Regulator may only determine under sub-section (6) that information

provided to it is not sensitive information within 15 business days of receiving

the information. If the Regulator does so, it shall:

(a) promptly notify the person who provided the information of its

determination; and

(b) in the case of information that the person is not required to provide to the

Regulator (which, for the avoidance of doubt, does not include

information in any documents provided to the Regulator in accordance

with sections 97(7), 134(3), 138(2)(b), 168 and 169), give the person an

opportunity to:

(i) withdraw the information, in which case the Regulator shall not

have regard to the information and sub-sections (3) and (4) apply

as if that information were sensitive information; or

(ii) re-submit any information it wishes the Regulator to consider in

accordance with sub-section (9) within any reasonable timeframe

specified by the Regulator.

(8) For the purposes of this section, unless the Regulator determines otherwise, the

following shall not be considered sensitive information:

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(a) details of any charges for the supply of the declared services; and

(b) essential terms and conditions of the supply of the declared services.

(9) If a person is required to provide the Regulator with (or wishes the Regulator

to consider) any information that contains sensitive information, that person

shall provide the Regulator with:

(a) a copy of that information in which the sensitive information is

visible; and

(b) a copy of information in which only the sensitive information has been

redacted but all other information is visible.

(10) Any person who wilfully acts in contravention of sub-sections (3) or (4)

commits an offence and shall, on conviction, be liable to a fine not exceeding

$10,000 or to a term of imprisonment not exceeding 3 years or both.

25 Assistance from advisory committees

The Regulator may, either generally or in any particular case, appoint persons as the

Regulator may determine, who may or may not be officers or employees of the

Regulator, to form an advisory committee to render such assistance as the Regulator

may specify in the exercise of the Regulator’ powers, the performance of the

Regulator’s functions or discharge of the Regulator’s duties under this Act and other

applicable laws.

PART VI - LICENSING

DIVISION 1- LICENSING REQUIREMENT

26 Supply of communications services

Subject to sections 27, 28 and 29, no person shall:

(a) own or operate a communications facility used to provide communications

services to the public, without a network operator licence issued under section

32; or

(b) provide communications services to the public, except:

(i) in accordance with a network operator licence issued under section 32; or

(ii) if the person is registered as a service provider under section 41.

27 Network operator licence required by owner or operator

(1) The owner of a communications facility used to provide communications

services to the public is authorised to own that communications facility if a

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person operating the communications facility is a network operator or if section

26 does not apply to that communications facility in accordance with sections

28 or 29.

(2) An operator of a communications facility used to provide communications

services to the public is authorised to operate that communications facility if

the owner of the communications facility is a network operator or if section 26

does not apply to that communications facility in accordance with sections 28

or 29.

28 Network facilities and communications services beyond the network
boundary

The prohibitions under section 26 shall not apply to the ownership or operation of

communications facilities or the provision of communications services solely on the

customer side of the network boundary.

29 Exempt communications services

The Minister may, where necessary and expedient to pursue the objects of this Act,

by declaration, exempt a type of communications facility or communications service

from the operation of section 26.

30 Supply without authorisation is an offence

Any person who contravenes section 26, commits an offence and shall, on conviction,

be liable to a fine not exceeding $10,000 or to a term of imprisonment not exceeding

2 years or both.

DIVISION 2 - NETWORK OPERATORS

31 Eligibility for a network operator licence

(1) A network operator licence shall be issued for the activities specified in section

26 only where the applicant is:

(a) a company as defined under the Companies Act 1995;

(b) a natural person who is a citizen of the Kingdom and of at least 18 years

of age;

(c) a partnership, one of the members of which is a citizen of the

Kingdom and of at least 18 years of age;

(d) a charitable trust, incorporated society, or other body organised under a

law of the Kingdom that has capacity to contract;

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(e) a government school, recognised school or registered school under the

Education Act; or

(f) an entity listed in Schedule 1 of the Public Service Act 2002.

(2) Notwithstanding sub-section (1), the Minister may, by declaration, exempt a

person or a class of persons from meeting the eligibility criteria in

subsection (1).

32 Network operators

(1) A network operator licence authorises a network operator to:

(a) own or operate communications facilities used to provide

communications services to the public; and

(b) provide communications services to the public.

(2) The Regulator shall promptly issue a licence to an applicant provided that:

(a) the applicant fulfils the eligibility requirements in section 31;

(b) the applicant’s application complies with the process for submitting an

application under the licensing rules;

(c) the applicant pays any applicable application fee specified in the

licensing rules; and

(d) the Regulator is satisfied that the applicant would be financially and

technically capable of meeting its legislative and regulatory obligations

as a network operator.

(3) The Regulator shall provide an applicant with written reasons for any refusal to

grant a network operator licence to an applicant.

33 Standard licence conditions

Network operators shall comply with the standard licence conditions specified in

Schedule 1 of this Act.

34 Special licence conditions for network operators

(1) Subject to sub-section (2), the Regulator may, by declaration, determine and

impose special licence conditions in addition to the standard licence conditions

on a network operator.

(2) The Regulator may only determine and impose special licence conditions if:

(a) the Regulator is satisfied that the standard licence conditions cannot

adequately provide regulatory controls that the Regulator considers

necessary to achieve the objectives of this Act or any general policy

directions notified to the Regulator by the Minister under section 21; and

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(b) the special licence conditions are limited to the extent reasonably

necessary to achieve the objectives of this Act.

(3) Without limiting the Regulator’s powers under sub-sections (1) and (2), the

Regulator may impose special licence conditions about the following:

(a) network rollout obligations;

(b) any conditions needed to implement any general policy directions

notified to the Regulator by the Minister under section 21;

(c) conditions necessary for compliance with international law or funding

arrangements with international bodies; and

(d) matters relating to the licence transition process specified section 187.

(4) Before making a declaration under sub-section (1), the Regulator shall carry

out a consultation under section 23.

35 Compliance with licence conditions

(1) A network operator shall comply with —

(a) the standard licence conditions as specified in Schedule 1 of this Act; and

(b) the special licence conditions as declared by the Regulator under

section 34.

(2) Any person who contravenes section 35(1), commits an offence and shall, on

conviction, be liable to a fine not exceeding $10,000 or to a term of

imprisonment not exceeding 3 years or both.

36 Network operator licence fees

(1) Each network operator shall pay an annual licence fee.

(2) The licence fee payable under sub-section (1) shall be:

(a) if the network operator’s eligible revenues for the previous financial year

is below the threshold amount, which shall be a fixed amount prescribed

under the licensing rules; or

(b) if the network operator’s eligible revenues for the previous financial year

is equal to or greater than the threshold amount , which shall be the sum

of the fixed amount referred to in paragraph (a) and an amount calculated

as a fixed percentage of network operator’s eligible revenues less the

threshold amount for the previous financial year.

(3) The fixed amount under sections 2(a) and (b) shall be prescribed in the

licensing rules.

(4) The threshold amount under sections 2(a) and (b) shall be prescribed in the

licensing rules.

(5) The fixed percentage under section 2(b) shall:

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(a) be specified in the licensing rules every 3 years either:

(i) as a single percentage to apply for a period of 3 years; or

(ii) as three percentages to apply over each of the next 3 years;

(b) be set having regard to:

(i) the principle of cost recovery, so that the Regulator ensures that

aggregate fees it intends to recover from network operators and

service providers are sufficient to recover its anticipated

funding requirements;

(ii) the principle of fee minimisation, so that the Regulator endeavours

to minimise the fees payable by network operators and service

providers, subject to the principle of cost recovery; and

(iii) any funds available to the Regulator that have been retained from

the previous financial year; and

(c) be no greater than 2%.

(6) The Regulator shall ensure that the licensing rules deal with the

following matters:

(a) the amounts described in this section;

(b) the provision of information by network operators to enable the

Regulator to verify the accuracy of eligible revenues reported by network

operators;

(c) any auditing requirements relating to the information provided to

the Regulator;

(d) the process for calculating the eligible revenues of the network operator;

and

(e) the process for invoicing and the payment of the fees described in

this section.

(7) Network operators shall provide the Regulator with any information required

under the licensing rules.

(8) A person who intentionally provides false or misleading information under sub-

section (7) commits an offence and shall be liable upon conviction to a fine not

exceeding amount $20,000 or imprisonment for a period not exceeding period

5 years or to both.

37 Term of network operator licences

Subject to sections 38 and 39, the term of a licence granted under section 32 shall

be indefinite.

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38 Suspension, amendment of revocation of a licence

(1) Subject to sub-section (2), the Regulator may, by declaration, suspend or

revoke, or amend the special licence conditions of, a network operator licence

in the event that:

(a) the network operator has failed to pay an amount required by this Act;

(b) the network operator has materially failed to comply with the provisions

of this Act and has not remedied that failure within a period of 20

business days of receipt of a notice by the Regulator stating the provision

and the acts or omissions that allegedly constitute or would constitute the

failure;

(c) the network operator has made false or misleading statements to the

Regulator in its licence application or in any other information submitted

to the Regulator under this Act;

(d) the network operator no longer meets the requirements of section 31;

(e) the network operator is bankrupt or enters into receivership or

liquidation, takes any action for its voluntary winding-up or dissolution,

or is the subject of any order by a competent court or tribunal for its

compulsory winding-up or dissolution, except if the Regulator is

satisfied that it is likely to remain in full compliance with the terms and

conditions of its licence;

(f) changes to international treaties or commitments by the Kingdom to

other governmental organisations or international agencies require an

amendment, suspension or a revocation, and the amendment, suspension

or revocation is only to the extent that is reasonably required as a result

of such changes; or

(g) in the case of an amendment or a suspension, the network operator agrees

to the amendment or the suspension.

(2) Prior to amendment, suspension or revocation of a licence under this section,

the Regulator:

(a) shall notify the network operator in writing that the Regulator is

considering the relevant action, the grounds for the action and any

procedures the Regulator will use in considering the relevant action;

(b) shall give the network operator sufficient time to prepare comments on

the relevant action, taking into account the nature of the proposed action,

which shall not be less than 10 business days;

(c) may (at the Regulator’s discretion) invite comments from other

interested parties or the public; and

(d) shall consider any comments under paragraph (b) or (c).

(3) In suspending or revoking, or amending the special licence conditions of any

licence under this section, the Regulator shall take into account continuity of

service to end users and any hardship that may result to the network operator.

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(4) The Regulator may only revoke a licence under this section if it is satisfied that

suspension or amendment is not appropriate in the circumstances, including by

having regard to the seriousness of any breach of licence and of any false or

misleading statements.

(5) The Regulator may, in any declaration revoking a licence under this section,

include such terms and conditions as the Regulator deems appropriate,

including authorising the network operator to continue providing any

communications service or undertake any other act for such duration as the

Regulator may, in its absolute discretion, specify in the declaration, for the

purpose of permitting the network operator to cease its activities in a manner

that mitigates any adverse consequences to any end users.

(6) If the Regulator suspends or revokes, or amends the special licence conditions

of a licence under this section, the Regulator shall provide the network operator

with reasonable time to comply with the amendment, suspension or revocation.

39 Surrender of network operator licence

A network operator may surrender a network operator licence by written notice to

the Regulator.

40 Register of network operator licences

The Regulator shall establish and maintain a register of network operators and any

special licence conditions.

DIVISION 3 - SERVICE PROVIDERS

41 Service providers

(1) A person registered as a service provider may provide communications services

to the public.

(2) The Regulator shall promptly register an applicant as a service provider and

notify that person of the registration, provided that:

(a) the applicant for registration fulfils the eligibility requirements in section

31;

(b) the applicant’s application for registration complies with the process for

submitting an application specified in the licensing rules;

(c) the applicant pays any applicable application fee under the licensing

rules; and

(d) the Regulator is satisfied (or deemed to be satisfied in accordance with

the licensing rules) that the applicant would be financially and

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technically capable of meeting its legislative and regulatory obligations

as a service provider.

(3) The Regulator shall provide an applicant with written reasons for any refusal to

register an applicant as a service provider.

42 Service provider conditions

Service providers shall comply with the standard service provider rules set out in

Schedule 2 of this Act.

43 Service provider registration fees

(1) Each service provider shall pay an annual registration fee.

(2) The registration fee under sub-section (1) shall be:

(a) if the service provider’s eligible revenues for the previous financial year

is below the threshold amount , which shall be a fixed amount; or

(b) if the service provider’s eligible revenues for the previous financial year

is equal to or greater than the threshold amount , which shall be the sum

of the fixed amount referred to in paragraph (a) and an amount calculated

as a fixed percentage of service provider’s eligible revenues less the

threshold amount for the previous financial year.

(3) The fixed amount under sections 2(a) and (b) shall be prescribed in the

licensing rules.

(4) The threshold amount under sections 2(a) and (b) shall be prescribed in the

licensing rules.

(5) The fixed percentage under section 2(b) shall:

(a) be specified in the licensing rules every 3 years either:

(i) as a single percentage to apply for a period of 3 years; or

(ii) as three percentage to apply over each of the next 3 years;

(b) be set having regard to:

(i) the principle of cost recovery, so that the Regulator ensures that

aggregate fees it intends to recover from network operators and

service providers are sufficient to recover its anticipated

funding requirements;

(ii) the principle of fee minimisation, so that the Regulator endeavours

to minimise the fees payable by network operators and service

providers, subject to the principle of cost recovery; and

(iii) any funds available to the Regulator that have been retained from

the previous financial year.

(c) be no greater than 2%.

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(6) The Regulator shall ensure that the licensing rules deal with the

following matters:

(a) the amounts described in this section;

(b) the provision of information by service providers to enable the Regulator

to verify the accuracy of eligible revenues reported by service providers;

(c) any auditing requirements relating to the information provided to

the Regulator;

(d) the process for calculating the eligible revenues of the service provider;

(e) the process for invoicing and the payment of the fees described in this

section; and

(f) matters relating to the licence transition process specified in section 187.

(7) Service providers shall provide the Regulator with any information required

under the licensing rules.

(8) A person who intentionally provides false or misleading information under sub-

section (7) commits an offence and shall be liable upon conviction to a fine not

exceeding amount $20,000 or imprisonment for a period not exceeding period

5 years or to both.

44 De-registration or suspension of a service provider

(1) Subject to sub-section (2), the Regulator may, by declaration, de-register or

suspend the registration of a service provider in the event:

(a) that the service provider has failed to pay an amount required by this Act;

(b) that the service provider has materially failed to comply with the

provisions of this Act and has not remedied that failure within a period

of 20 business days receipt of a notice by the Regulator stating the

condition and the acts or omissions that allegedly constitute or would

constitute the breach;

(c) the service provider no longer meets the requirements of section 31;

(d) the service provider has made false or misleading statements to the

Regulator in its application for registration or in any other information

submitted to the Regulator under this Act;

(e) the service provider is bankrupt or enters into receivership or liquidation,

takes any action for its voluntary winding-up or dissolution, or is the

subject of any order by a competent court or tribunal for its compulsory

winding-up or dissolution, except if the Regulator is satisfied that it is

likely to remain in full compliance with the terms and conditions of its

registration;

(f) changes to international treaties or commitments by the Kingdom to

other governmental organisations or international agencies require the

suspension or de-registration of the service provider, and the suspension

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or de-registration is only to the extent that is reasonably required as a

result of such changes; or

(g) in the case of a suspension, the service provider agrees to the suspension.

(2) Prior to suspension or de-registration of a service provider under this section,

the Regulator:

(a) shall notify the service provider in writing that the Regulator is

considering the relevant action, the grounds for the action and any

procedures the Regulator will use in considering the relevant action;

(b) shall give the service provider sufficient time to prepare comments on

the relevant action, taking into account the nature of the proposed action,

which shall not be less than 10 business days;

(c) may (at the Regulator’s discretion) invite comments from other

interested parties or the public; and

(d) shall consider any comments under paragraph (b) or (c).

(3) In de-registering or suspending the registration of any service provider under

this section, the Regulator shall take into account continuity of service to end

users and any hardship that may result to the service provider.

(4) The Regulator may only de-register a service provider under this section if it is

satisfied that suspension is not appropriate in the circumstances, including by

having regard to the seriousness of any breach of terms of the service provider’s

registration and of any false or misleading statements.

(5) The Regulator may, in any declaration de-registering a service provider under

this section, include such terms and conditions as the Regulator deems

appropriate, including authorising the service provider to continue providing

any communications service or undertake any other act for such duration as the

Regulator may, in its absolute discretion, specify in the declaration, for the

purpose of permitting the service provider to cease its activities in a manner

that mitigates any adverse consequences to any persons to whom the service

provider supplies services.

(6) If the Regulator de-registers or suspends the registrations of a service provider

under this section, the Regulator shall provide the service provider with

reasonable time to comply with the suspension or de-registration.

45 Withdrawal of registration as a service provider

A service provider may withdraw its registration as a service provider by written

notice to the Regulator.

46 Register of service providers

The Regulator shall establish and maintain a register of all persons registered as a

service provider.

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DIVISION 4 - OTHER MATTERS

47 Licensing rules

(1) The Regulator shall make rules about the licensing of network operators and

registration of service providers, specifying:

(a) the process for submitting an application for a network operator licence

and for registering as a service provider;

(b) any application fees to be paid to the Regulator for a network operator

licence or for registering as a service provider;

(c) the timeframes within which the Regulator will endeavour to process

applications for network operator licences and applications for

registering as a service provider;

(d) any criteria that the Regulator will consider when assessing under

sections 32(2)(d) and 41(2)(d) whether an applicant for a network

operator licence or for registration as a service provider is financially and

technically capable of meeting its legislative and regulatory obligations;

and

(e) any other matter required under this Part V to be specified in the licensing

rules.

(2) The rules under sub-section (1) may also specify:

(a) any matter that the Regulator considers necessary or convenient for or in

connection with the licence transition process described under section

187; and

(b) any other matter relating to the licensing of network operators or

registration of service providers that the Regulator considers necessary

or convenient for or in connection with the performance of its functions

under this Division.

(3) Before making rules under this section, the Regulator shall carry out a

consultation under section 23.

48 No rights to use radio frequency spectrum under Division 2 or 3

A network operator licence granted under Division 2 or registration as a service

provider under Division 3 does not confer any right to use any part of the radio

frequency spectrum.

49 Licences is a unilateral grant of permission

Regardless of form and content, a licence granted under Part V is a unilateral grant of

permission from the Regulator and not a bilateral agreement or contract.

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50 No exclusive licences

(1) Nothing in this Act shall permit the conferral on any person of monopoly or

exclusive rights to provide a type of communications services or install or

operate a type of communications facility.

(2) The Regulator, Minister and Ministry shall ensure that no monopoly or

exclusive rights referred to in sub-section (1) are conferred on any person.

51 Exemption from licence fees in the public interest

The Minister may, by declaration, exempt a licensee from the obligation to pay some

or all fees under this Act where that person is required by, or is under a duty imposed

by, legislation to provide a communications service to the public.

52 Regulator not to discriminate

The Regulator shall exercise its powers and perform its functions under this Part in a

manner that does not discriminate between applicants or licensees.

PART VII - CONSUMER PROTECTION

DIVISION 1 - CONSUMER STANDARDS

53 Consumer standards

(1) The Regulator may make relevant and appropriate consumer standards which

shall apply to all licensees.

(2) Before making consumer standards under sub-section (1), the Regulator shall

carry out a consultation under section 23.

(3) In making consumer standards under sub-section (1), the Regulator shall have

regard to:

(a) existing consumer standards applying to the communications sector in

the region (including in Australia and New Zealand);

(b) the ability of licensees to meet the proposed standards;

(c) the benefits to consumers of the proposed standards; and

(d) any other matter the Regulator thinks appropriate.

(4) The Regulator may specify, in any consumer standard made under sub-

section (1):

(a) classes or categories of consumers to which the consumer standard does

not apply; or

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(b) classes or categories of consumers who may, by agreement with the

relevant licensee, agree that part or all of the consumer standard does

not apply.

54 Matters for consumer standards

Consumer standards made by the Regulator under section 53 may include, but shall

not be limited to:

(a) the provision of information to consumers about services, tariffs

and performance;

(b) the handling of consumer complaints and dispute resolution;

(c) the protection of individual consumer information;

(d) the provisioning and maintenance (including fault repair) of services;

(e) the advertising or representation of services;

(f) consumer charging, billing, collection and credit practices;

(g) service standards; and

(h) any other matter of concern to consumers or as may be considered to be

appropriate by the Regulator.

55 Consumer law not to be excluded

(1) Any term of a contract (including a term that is not set out in the contract but is

incorporated in the contract by another term) that purports to exclude, restrict

or modify, or has the effect of excluding, restricting or modifying, any of the

following is void:

(a) the application of a consumer law provision;

(b) the exercise of a right conferred by a consumer law provision; or

(c) any liability under a consumer law provision.

(2) A term of a contract is not taken to exclude, restrict or modify the application

of a consumer law provision unless the term does so expressly or is inconsistent

with that provision.

(3) For the purpose of this section, a “consumer law provision” means a provision

in this Division or a standard made under this Division.

56 False, misleading or deceptive conduct and representations

(1) A licensee shall not engage in conduct that is misleading or deceptive or is

likely to mislead or deceive.

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(2) A licensee shall not engage in conduct that is likely to mislead the public as to

the nature, the characteristics, the suitability for their purpose, price or the

quantity of any communications services.

(3) A licensee shall not in connection with the supply or use of goods or services:

(a) make a false or misleading representation that goods or services are of a

particular standard, quality or grade, or that goods are of a particular style

or mode;

(b) make a false or misleading representation that goods are new;

(c) make a false or misleading representation that goods or services have

sponsorship, approval, performance, characteristics, accessories, uses

or benefits;

(d) make a false or misleading representation that the licensee has a

sponsorship approval or affiliation;

(e) make a false or misleading representation about the need for any goods,

services, replacements or repairs; or

(f) make a false or misleading representation about the existence or effect of

any warranty or guarantee.

(4) For the purposes of sub-section (3), a representation is misleading if, at the time
the representation was made, the licensee knew or reasonably ought to have

known that the representation was misleading in any material respect or that the

representation was reasonably likely to mislead the person to whom the

representation was made.

57 Consumer complaints

(1) A consumer may apply to the Regulator for an order under sub-section (2) if:

(a) the consumer has a bona fide complaint against, or is involved in a bona

fide dispute with, a licensee;

(b) the consumer has made reasonable efforts to resolve the dispute (or the

issues the subject of the complaint); and

(c) the complaint or dispute has not been treated by the licensee in

accordance with any relevant consumer standard made under section 53

of this Act.

(2) In response to any referral under sub-section (1), the Regulator may, by written

notice:

(a) assign a member of the Regulator’s staff or a consultant to attempt to

mediate the complaint or dispute;

(b) issue an order to resolve the dispute or deal with the complaint; or

(c) issue an order to the licensee to follow its complaint-

handling procedures,

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provided that any remedy ordered by the Regulator is not inconsistent

with any reasonable conditions and procedures established by the

licensee and provided the Regulator has consulted with the licensee prior

to making the order.

(3) For the purposes of this Division, “consumer” means a customer.

DIVISION 2 - TARIFFS FOR SERVICES

58 Application of Division 2

For the purposes of this Division:

(a) “retail communications services”means communications services or classes

of communications services specified in the tariff rules, but does not include a

wholesale access service; and

(b) “tariff” means, in relation to any retail communications service offered by the

licensee, the amount payable by a customer for that communications service

(including any discounts, promotions, rights, privileges or other benefits

conferred on or made available to the customer as part of the offer).

59 Tariffs for retail communications services

(1) A licensee shall notify the Regulator in writing of all tariffs for its retail

communications services:

(a) within 10 business days of the commencement of this section; and

(b) for any retail communications services that the licensee did not provided

before the commencement of this section, before (or at the same time as)

those tariffs take effect.

(2) In notifying the Regulator of tariffs under sub-section (1), a licensee shall

comply with the tariff rules.

60 Licensee to provide services in accordance with tariffs

A licensee shall not, in respect of a retail communications service, impose any charge

or make any claim or demand for an amount that does not form part of a tariff notified

to the Regulator under sections 59 or 61.

61 Variation or revocation of tariffs

(1) A licensee shall notify the Regulator in writing of any variation or revocation

of a tariff notified under section 43 before (or at the same time as) that variation

or revocation takes effect.

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(2) In providing notices under sub-section (1), a licensee shall comply with the

tariff rules.

62 Publication of tariffs for retail communications services

(1) A licensee shall at all times:

(a) publish on the licensee’s website; and

(b) make available for public inspection, without charge, at all of the

licensee’s business offices during normal business hours,

all tariffs that have been notified to the Regulator under sections 59 or 61

(2) In complying with its obligations under sub-section (1), a licensee shall comply

with the tariff rules.

63 Register of tariffs

The Regulator shall establish and maintain a register of tariffs notified to the Regulator

under sections 59 and 61.

DIVISION 3 - REGULATION OF TARIFFS

64 Rules about tariffs

(1) The Regulator may make rules about tariffs for any communications services

other than wholesale access services.

(2) Rules made under sub-section (1) may include but shall not be limited to:

(a) tariffs and variation of tariffs for certain communications services or

classes of communications services;

(b) publication or disclosure of tariffs for certain communications services

or classes of communications services;

(c) penalties for contravening the rules made under this section;

(d) the process for filing tariffs (including the form in which they shall be

filed and any accompanying information required by the Regulator); and

(e) any other matter as may be required by the Regulator.

(3) Before making rules under sub-section (1), the Regulator shall carry out a

consultation under section 23.


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DIVISION 4 - UNIVERSAL SERVICE REGIME

65 Universal service regime

(1) The Minister may direct the Ministry to develop a system, to be known as the

universal service regime, to promote the widespread availability of

communications services throughout the Kingdom.

(2) The universal service regime developed by the Ministry shall be subject to the

approval by declaration of the Minister.

66 Matters to be considered in a universal service regime

(1) The matters which may be addressed in a universal service regime developed

under section 65, may include but shall not be limited to:

(a) the needs of underserved areas within the Kingdom;

(b) the needs of underserved groups within the community;

(c) measures to encourage the installation of communications facilities and

the provision of communications services to serve such underserved

areas and underserved groups;

(d) affordability of such services;

(e) costs of providing such services;

(f) equitable sharing of the costs of such service throughout the community;

and

(g) any other matter as may be required by the Minister.

(2) The Ministry shall consult with the Regulator and hold consultations with

interested parties when developing the universal service regime.

67 Universal service rules

(1) After the Minister has approved the universal service regime under section 65,
the Regulator shall make rules about the universal service regime that may

include:

(a) provisions governing the operation of any universal service fund;

(b) how any universal service funds may be applied;

(c) the provision of services under universal service agreements;

(d) a requirement on licensees to pay a universal service levy and details on

how that levy will be calculated;

(e) a fair and transparent method of selecting a person to become a party to

a universal services agreement, which may include a competitive

process; and

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(f) any other matter relating to universal service that the Regulator considers

necessary or convenient for or in connection with the performance of its

functions under this Division.

(2) The rules made under sub-section (1) shall be consistent with the universal

service regime.

(3) The Regulator shall ensure that any universal service levy under the rules made

under sub-section (1) is set in such a way that the sum of:

(a) the amount payable by a licensee under the universal service levy; and

(b) any amount payable by the licensee under Part V that is based on a

percentage the licensee’s eligible revenues,

is no greater than 2% of the licensee’s eligible revenue.

(4) Before making rules under sub-section (1), the Regulator shall carry out a
consultation under section 23.

PART VIII - TECHNICAL REGULATION

DIVISION 1 - NUMBERING AND ELECTRONIC ADDRESSING

68 Responsibility for numbering

The Regulator shall be responsible for the control, planning, administration,

management and assignment of the numbering of communications services.

69 Responsibility for electronic addressing

(1) Subject to sub-section (3), the Minister or one or more persons nominated by

the Minister shall assume and be responsible for electronic addressing.

(2) The nominated person under sub-section (1) may be the Regulator.

(3) Any assumption of responsibility for electronic addressing shall be subject to

the requisite approvals and consents of the Internet Assigned Numbers

Authority.

(4) The nominated person shall comply with the procedures, conditions of and

agreements with the Internet Assigned Numbers Authority.

(5) The Minister shall monitor compliance by any nominated person with the

provisions of this section.

(6) For the purposes of this Division:

(a) “electronic addressing” means the registration and allocation of

domain names under Tonga’s internet country code top-level-domain

(ccTLD) ".to";

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(b) “Internet Assigned Numbers Authority” means the organisation

responsible for the international coordination of the DNS Root, IP

addressing and certain other internet protocol resources and includes any

successor to that organisation; and

(c) “nominated person” means a person nominated by the Minister under

sub-section (1).

70 Numbering plan and numbering rules

(1) The Regulator shall develop a national numbering plan for the numbering of

communications services which shall apply to licensees under this Act.

(2) The numbering plan developed by the Regulator shall:

(a) specify the numbers that are for use in connection with communications

services and may specify different numbers for use in connection with

the supply of different types of communications services;

(b) take into account any existing numbering plan and assignment of

numbers; and

(c) be consistent with the requirements of any international agreements,

commitments or conventions to which the Kingdom is a party or has

otherwise subscribed to.

(3) The Regulator shall make rules specifying:

(a) the process for submitting an application for an assignment of numbers;

(b) the criteria for who is eligible to submit an application;

(c) the process for the assignment of numbers by the Regulator;

(d) any applicable fees;

(e) any rules about the use of numbers or particular number ranges;

(f) any rules identifying shared numbers and regulating how they can

be used;

(g) the circumstances in which numbers can be surrendered, cancelled or

withdrawn and the processes by which this can occur; and

(h) any other matter relating to numbering that the Regulator considers

necessary or convenient for or in connection with the performance of its

functions under this Division.

(4) The rules in sub-section (3) shall be consistent with the numbering plan and

shall ensure that numbers are assigned on a non-discriminatory basis.

(5) The Regulator shall ensure that any assignment of numbers is in accordance

with the numbering plan and any rules made under this section.

(6) Before developing a national numbering plan or making any rules under this

section, the Regulator shall carry out a consultation under section 23.

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71 Register of numbering assignments

The Regulator shall establish and maintain a register of assigned numbers that

includes details of all numbering assignments.

72 Emergency calls

(1) The Regulator may make a declaration dealing with calls made to emergency

service organisations in the Kingdom using emergency service numbers.

(2) Matters dealt with in a declaration under sub-section (1) may include, but shall

not be limited to:

(a) identifying emergency service numbers and emergency service

organisations for the purpose of this Act;

(b) requiring licensees to provide services that enable end users to use

emergency service numbers to call emergency service organisations;

(c) identifying an emergency call operator, who will be responsible for

receiving and handling calls to an emergency service number and

transferring such calls to the appropriate emergency service organisation;

and

(d) imposing obligations on licensees or emergency call operators about the

time taken to answer calls to emergency service numbers.

(3) Before making a declaration under sub-section (1), the Regulator shall carry

out a consultation under section 23.

73 Number portability

(1) Subject to sub-sections (2) to (5), the Regulator may make rules about

number portability.

(2) Before making rules about number portability, the Regulator shall:

(a) carry out a consultation about the proposed rules under section 23; and

(b) prepare a report for the Minister outlining the results of the consultation

and the Regulator’s recommendations on whether number portability

shall be implemented and any proposed rules for implementing

numbering portability.

(3) The Regulator shall not recommend the implementation of number portability

under sub-section (2) unless, having considered the results of the consultation

under sub-section (2), the Regulator is satisfied that:

(a) there is a reasonable likelihood of demand for number portability; and

(b) the benefits of introducing number portability outweighs the costs.

(4) If the Regulator recommends, under sub-section (2), that rules be made about

number portability, the Minister may, by declaration, approve or reject (either

in whole or part) the Regulator’s recommendations.

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(5) The Regulator shall not make rules about number portability under sub-section

(1), unless those rules are consistent with recommendations approved by the

Minister under sub-section (4).

(6) The Minister shall notify the Regulator in writing of the reasons for any

decision under sub-section (4), and the Regulator shall publish those reasons on

its website.

74 Directories

(1) The Regulator may make a declaration dealing with the publication of

telephone directories and provision of directory services.

(2) Matters dealt with in a declaration under sub-section (1) may include, but shall

not be limited to:

(a) the collection, use and accuracy of information collected from customers

that may (subject to rules about unlisted numbers) be published in a

telephone directory or used in a directory information service;

(b) listed and unlisted numbers;

(c) the provision directory information services; and

(d) the publication of telephone directories.

(3) Before making a declaration under sub-section (1), the Regulator shall carry
out a consultation under section 23.

75 No property rights in numbers

Licensees, customers and end users shall not have any property rights in numbers.

76 Technical standards

(1) The Regulator may, by declaration:

(a) make technical standards; and

(b) adopt technical standards promulgated by international standard setting

bodies or national regulatory authorities of other countries,

which shall apply to licensees and any other person specified in the

relevant technical standard.

(2) Before making or adopting any technical standards under sub-section (1), the

Regulator shall carry out a consultation under section 23.





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DIVISION 2 - TECHNICAL STANDARDS

77 Matters for technical standards

Technical standards made or adopted by the Regulator under section 76, may include,

but shall not be limited to:

(a) technical requirements for communications facilities, communications

networks, communications services and customer equipment;

(b) the qualifications of installers of communications facilities and customer

equipment (but excluding customer cabling);

(c) the promotion of electromagnetic immunity and compatibility;

(d) the promotion of safety; or

(e) any other technical matter that the Regulator considers necessary or convenient

for or in connection with the performance of its functions under this Division.

78 Technical rules

(1) The Regulator shall make rules about customer equipment that specify:

(a) the types of customer equipment that shall be approved before it is

connected to a communications network in Tonga;

(b) the criteria for the approval of customer equipment;

(c) the process for certifying conformity with those criteria;

(d) how the Regulator may recognise and apply rules, conditions and

approval processes of other countries; and

(e) any special arrangements for the certification of customer equipment

already in use.

(2) The rules under sub-section (1) may also specify:

(a) a process for the Regulator to accredit conformity assessment bodies in

Tonga; and

(b) any other matter relating to customer equipment or network facilities that

the Regulator considers necessary or convenient for or in connection

with the performance of its functions under this Division.

(3) Before making rules under this section, the Regulator shall carry out a

consultation under section 23.

79 Register of customer equipment

The Regulator shall establish and maintain a register of approved types of

customer equipment.

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80 Mutual recognition agreements

The Regulator may enter into mutual recognition agreements with authorities in other

countries to provide for the mutual recognition of, certification and approval of

communications equipment in other countries and in Tonga.

81 Customer cabling

The Minister may, upon the recommendation of the Regulator, make regulations

under section 186 for the supervision and licensing of installers of customer cabling.

82 Disconnection of customer equipment

A licensee may refuse to supply or cease supplying a communications service in the

event that the licensee considers the customer equipment which is connected to the

licensee's network, for the utilisation of the communications services, is a threat or

poses a threat to the safety or functioning of the communications service or the safety

of any person or is not approved.

83 Request for the Regulator to direct licensees

Where a licensee refuses to provide or ceases to provide a communications service to

a person under section 82, that person may apply to the Regulator for a direction under

section 84.

84 Regulator may direct the provision of communications services

(1) Upon receipt of an application under section 83, the Regulator shall, by notice

in writing:

(a) inform the licensee concerned of the application; and

(b) invite the licensee to make submissions to the Regulator within 5

business days after receiving the notice as to whether a direction shall be

made under sub-section (2).

(2) After the later of the receipt of submissions by the licensee or the expiry of the

period referred to in sub-section 1(b), the Regulator shall consider any

submissions received and if, having consider those submissions, it is satisfied

that the connection of customer equipment disconnected under section 82 is not

a threat or does not pose a threat to the safety or functioning of the

communications service or to the safety of any person and is approved, the

Regulator shall direct the relevant licensee, by written notice, to supply the

requested communications service.

(3) A licensee shall comply with any direction under sub-section (2).

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DIVISION 3 - RADIO FREQUENCY SPECTRUM MANAGEMENT

85 Regulator to manage radio frequency spectrum

(1) The Regulator shall be responsible for the control, planning, administration,

management and licensing of the radio frequency spectrum in the Kingdom.

(2) In performing its functions under this Division, the Regulator shall ensure that

the management of radio frequency spectrum in the Kingdom:

(a) is carried out in a manner that is non-discriminatory and economically

efficient; and

(b) is in accordance with the standards and regulations of the International

Telecommunications Union and other international and regional treaties,

commitments, protocols, and standards as agreed to or adopted by the

Kingdom.

(3) Without limiting its obligations under section 85(2), in performing its functions

under sections 87 to 88, the Regulator shall take into account:

(a) the objects of the Act;

(b) the impact of the National Spectrum Plan and National Frequency

Allocation Table on existing and future use of the radio frequency

spectrum; and

(c) the orderly and efficient use of the radio frequency spectrum.

86 National Spectrum Plan

(1) The Regulator shall develop, and at least once every 2 years update, a plan to

be known as the National Spectrum Plan.

(2) The National Spectrum Plan developed by the Regulator under subsection (1)

shall set out the Regulator’s plan for managing the radio frequency spectrum

over a period of at least 5 years including:

(a) the policy for how different parts of radio frequency spectrum are used

or allocated;

(b) any proposed changes to how parts of the radio frequency spectrum are

used or allocated (including the details of the changes and relevant

timelines); and

(c) the identification of any part of the radio frequency spectrum that is

valuable state resource.

(3) The National Spectrum Plan developed or updated by the Regulator shall be

subject to the approval by declaration of the Minister.

(4) Before developing or updating the National Spectrum Plan, the Regulator shall

carry out a consultation under section 23.

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(5) The National Spectrum Plan shall be maintained by the Regulator and

published by the Regulator on its website.

87 Determination of the National Frequency Allocation Table

(1) The Regulator shall develop a document known as the National Frequency

Allocation Table in order to manage the use of the radio frequency spectrum.

(2) The National Frequency Allocation Table shall be maintained by the Regulator

and published by the Regulator on its website.

88 Contents of the National Table of Frequency Allocations

The National Frequency Allocation Table developed by the Regulator under section

87 shall state how the radio frequency spectrum may be used and may include but

shall not be limited to:

(a) the existing and planned frequency allocations;

(b) the existing and planned frequency reservations; and

(c) any other matter as may be required by the Minister.

89 Radio spectrum rules

(1) The Regulator shall make rules about the radio frequency spectrum specifying:

(a) the categories of radio spectrum licences that may be issued in relation

to spectrum blocks or particular frequencies;

(b) the circumstances in which a radiocommunications device is exempt

from a radio spectrum licence;

(c) the process for submitting an application for a radio spectrum licence;

(d) the criteria for who is eligible to submit an application;

(e) application fees to be paid to the Regulator (if any);

(f) any rules about the use of radio frequency spectrum or particular parts of

radio frequency spectrum, including any interference requirements;

(g) any licence conditions and technical standards that apply to particular

radio spectrum licences or particular devices;

(h) any licence fees that are payable for radio spectrum licences;

(i) the circumstances in which radio spectrum licences can be surrendered,

suspended, revoked or amended; and

(j) the processes for determining any disputes about radio frequency

spectrum interference.

(2) The rules under sub-section (1) may also specify:

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(a) a fair and transparent method of issuing radio spectrum licences for

valuable state resources, which may include a competitive process;

(b) any rules or processes for the assignment of radio frequency spectrum to

a licensee as part of the licence transition process specified in section

187; and

(c) any other matter relating to radio spectrum that the Regulator considers

necessary or convenient for or in connection with the performance of its

functions under this Division.

(3) The Regulator shall ensure that any fees prescribed under the rules made under

sub-section (1) shall be:

(a) where the fee is for the allocation of a valuable state resource by means

of a competitive process — the amount payable as a result of the

competitive process; and

(b) otherwise, a fixed amount published by the Regulator on its website or

any other form the Regulator thinks fit.

(4) Before making rules under this section, the Regulator shall carry out a

consultation under section 23.

90 Radio spectrum licences

(1) A person shall not:

(a) establish, operate or use a radiocommunications service;

(b) install, operate or use any radio transmitting equipment; or

(c) establish, operate or use any apparatus or radiocommunication service in

any place or on board any ship or aircraft registered in the Kingdom,

without a radio spectrum licence granted by the Regulator in accordance

with the radio spectrum rules, except where the use is permitted under

the radio spectrum rules.

(2) Where a person applies for a licence to own, operate or use communications

facilities or provide communications services and the operation of the relevant

network facilities and the provision of the communications services requires

access to radio frequency spectrum:

(a) that person shall apply for a radio spectrum licence at the same time as

the application for a network operator licence; and

(b) the Regulator shall consider both applications together and may refuse to

issue the network operator licence if the applicant does not comply with

the requirements for a radio spectrum licence.

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91 Assignments of radio frequency spectrum

(1) The Regulator shall ensure that any assignment of radio frequency spectrum in

a radio spectrum licence is in accordance with the National Spectrum Plan, the

National Frequency Allocation Table and any radio spectrum rules.

(2) The Regulator shall establish and maintain a register of all assignments of radio

frequency spectrum to licensees.

DIVISION 4 - MANAGEMENT OF SATELLITE ORBITAL SLOTS

92 Management of satellite orbital slots

(1) The Minister (or one or more persons nominated by the Minister) shall assume

and be responsible for the overall management and allocation of the

Government's orbital satellite slot interests.

(2) The nominated person under sub-section (1) may be the Regulator.

PART IX - SOCIAL REGULATION

DIVISION 1 - CONTENT APPLICATIONS SERVICES


93 Application of Division 1 of Part VIII

This Division only applies to content supplied by a licensee by means of a content

applications service.

94 Broadcasting and content standards

The Minister may, by declaration, make standards for content applications services

supplied in the Kingdom which shall apply to all licensees that supply a content

applications service.

95 Matters for broadcasting and content standards

Broadcasting and content standards made by the Minister under section 71 may

include but shall not be limited to:

(a) the restrictions or prohibitions relating to the supply of unsuitable content or

particular types of content;

(b) the methods of classifying content;

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(c) the restrictions or prohibitions relating to advertising content;

(d) the representation of Tongan culture and national identity; and

(e) restrictions on the hours during which broadcasting services or services for

delivering subscription content may be supplied.

96 Ministry may direct a licensee to comply

Subject to the approval of the Minister, the Ministry may direct a licensee or a class

of licensees to:

(a) comply with an approved content standard or with sections 98, 100, 101, 102,

or 104; or

(b) vary a content applications service provided in order that such a service shall

be in compliance with the content standards or with sections 98, 100, 101, 102

or 104.

97 Ministry to have enforcement powers of the Regulator

For the purpose of enforcing section 96, the Minister shall have the powers granted to

the Regulator in sections 159, 160, 161, 162, 163, 164 and 169 and references to the

Regulator in those sections shall be read as references to the Minister.

98 Censorship

A licensee shall not supply any content which:

(a) is indecent or obscene;

(b) displays excessive violence;

(c) is blasphemous;

(d) is treasonous or seditious;

(e) is defamatory; or

(f) will contravene the Laws of the Kingdom.

99 Defamation Act

For the purposes of the Defamation Act (Cap. 33), any content supplied by a licensee,

in the case of:

(a) audio content, shall be deemed to be in the form of sound or speech; and

(b) audio visual content, shall be deemed to be in the form of visual, speech and

sound.

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100 Religion

Subject to the approval of Cabinet, the Minister or any person delegated by him, may

by declaration require a licensee, to supply, without charge, divine worship content or

other content of a religious nature during such periods as the Minister, or such person

delegated by him, may determine.

101 National Interest

Subject to the approval of Cabinet, the Minister or any person delegated by him, may

by declaration require a licensee, to supply without charge, such content relating to

national interest matters as the Minister, or such person delegated by him, may

determine.

102 Education

Subject to the approval of the Cabinet, the Minister or any person delegated by him,

may by declaration require a licensee, to supply, either subject to a reasonable fee or

without charge, such educational content as the Minister, or such person delegated by

him, may determine.

103 National emergency

During any period of national emergency, a licensee shall place its facilities that are

used to provide content applications services, free of charge, at the service of

Government, and shall also supply competent persons to operate such facilities and

provide content applications services.

104 Political and controversial content

Subject to the approval of Cabinet, the Minister may determine, by declaration, the

extent and manner in which a licensee may provide political or controversial content.

105 Offence

A licensee who supplies content applications services contrary to the provisions of

this Act or its subsidiary legislation, or its licence, commits an offence and shall, on

conviction, be liable to a fine not exceeding $10,000 or to a term of imprisonment not

exceeding 3 years or both.

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DIVISION 2 - INTERNET SERVICE PROVIDERS AND HOSTING SERVICE
PROVIDERS

106 Take-down notices

(1) The Ministry may, either in response to a complaint or on its own initiative,

investigate whether a hosting service provider is hosting prohibited content.

(2) If, after an investigation under sub-section (1), the Ministry is satisfied that

content hosted by a hosting service provider is prohibited content, then the

Ministry may give the hosting service provider a written notice (take-down

notice) directing the hosting service provider to take such steps as are necessary

to ensure that the hosting service provider ceases to host the content.

(3) A hosting service provider shall comply with a take-down notice issued to it

under sub-section (2) as soon as practicable, but in any event within 10 business

days after the notice was received by the hosting service provider.

(4) Each hosting service provider shall have in place a procedure for receiving and

responding to take-down notices, including nominating a contact person to

whom the Ministry shall send take-down notices.

(5) As soon as practicable after a hosting service provider receives a take-down

notice under sub-section (2), it shall, where practicable, notify the person who

made the offending content accessible to the public that the offending content

is subject to a take-down notice.

(6) For the purpose of this section:

(a) “computer data storage medium” has the meaning given in section

2 of the Computer Crimes Act 2003;

(b) “offending content” means content subject to a take-down notice under

sub-section (2);

(c) “prohibited content” means:

(i) content that contravenes the standards of section 98 of the

Communications Act;

(ii) content that constitutes defamatory matter under the

Defamation Act (Cap. 33); or

(iii) content that formed the basis of an action of under section 8E of

the Computer Crimes Act 2003; and

(d) "take-down notice" has the meaning given in sub-section (2).

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107 Opt-out filtering

(1) Where an internet service provider supplies an internet service to a customer in

the Kingdom, the Minister may direct the internet service provider to make

family friendly filtering available to customers.

(2) An internet service provider shall not charge a customer for family friendly

filtering any amount greater than the total cost incurred by the internet service

provider in obtaining, supplying and maintaining the family friendly filtering.

(3) A customer may request that an internet service provider that supplies an

internet service to that customer disable family friendly filtering applying to

that internet service.

(4) If an internet service provider receives a request under sub-section (3):

(a) the internet service provider shall take reasonable steps to verify that the
request came from the customer and that the customer was at least 18

years of age at the time of the request; and

(b) if the internet service provider is satisfied of the matters referred to in

paragraph (a), it shall disable the family friendly filtering applying to the

relevant internet service and shall not charge the customer any fee that

exceeds the internet service provider’s reasonable costs of disabling the

family friendly filtering.

(5) Internet service providers shall take all reasonable steps to ensure that the

family friendly filtering only denies or restricts access to content on the internet

that is unlawful to possess, access, distribute or publish under the Laws of the

Kingdom, and in doing so internet service providers shall take reasonable steps

to ensure unrestricted access to bona fide scientific, medical and health

information.

(6) Subject to section 109, an internet service provider shall not use any

information that:

(a) it obtains in the course of providing family friendly filtering to a

customer; and

(b) relates to content accessed by that customer or the contents of that

customer’s communications,

for any purpose other than implementing the family friendly filtering for

that customer.

(7) For the purposes of this section:

(a) "filtering" means a product or service designed to restrict or deny access

to a web page or other content available on the internet;

(b) "family friendly filtering" means filtering that is designed to deny or

restrict access to content on the internet where it is unlawful to possess,

access, distribute or publish that content under the Laws of the Kingdom.

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108 Mandatory filtering

(1) The Ministry may, by declaration, determine a scheme to prevent access to

child pornography otherwise accessible on the internet.

(2) Internet service providers shall comply with a scheme under sub-section (1).

(3) In determining a scheme referred to in sub-section (1), the Ministry shall have

regard to:

(a) the benefits of free communication and access to information on the

internet;

(b) community expectations and Tongan cultural and national values;

(c) the technical feasibility of the scheme;

(d) the costs and other impacts on internet service providers and end users

of implementing the scheme; and

(e) the need to ensure the scheme is as transparent as possible and that there

are appropriate avenues to ensure that access to domains that do not

contain child pornography remains unrestricted.

(4) For the purposes of this section, "child pornography" has the meaning given

in section 115A of the Criminal Offences Act.

109 Internet service providers shall report child pornography

If an internet service provider or hosting service provider:

(a) becomes aware that a communications service provided by the internet service

provider or hosting service provider can be used to access material act a

particular webpage, website or internet protocol address that the internet service

provider or hosting service provider has reasonable grounds to believe is child

pornography; or

(b) is advised of a webpage, website or internet protocol address where child

pornography may be stored or made available to the public,

the internet service provider or hosting service provider shall, within a

reasonable time of becoming aware or being informed of those details, report

those details to Tonga Police.

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PART X - ECONOMIC REGULATION

DIVISION 1 - GENERAL COMPETITION PRACTICE

SUBDIVISION A – GENERAL

110 Definitions

For the purposes of this Division:

(a) "licensee" means a person or a company to which this Division applies in

accordance with section 111 and includes all related companies of that person

or company;

(b) "communications service" means a service that incorporates assets,

infrastructure or technology, the ownership, operation or use of which requires

a licence issued under the Act;

(c) "communications services market" means, subject to section 112, a market

within the Kingdom for the supply or acquisition of a relevant product or

service;

(d) "related company" has the meaning given in the Companies Act 1995;

(e) "relevant person" includes a person or a class of persons; and

(f) "relevant product or service" means a communications service, or any

product or service used in connection with a communication service.

111 Application of this Division

This Division applies to:

(a) a licensee or a person issued with a licence in accordance with this Act; and

(b) a person or a class of persons engaged in conduct that:

(i) requires a licence in accordance with the Act; or

(ii) would require a licence mentioned in sub-section (a) but for —

(A) an exemption from the requirement to hold a licence prescribed in

accordance with the Act; or

(B) a declaration by the Minister that the person or class of persons is

exempt from the requirement to hold a licence under the Act.

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112 Communications services markets

(1) For the purposes of this Division, the definition of a communications services
market for a particular communications service or the product or service used

in connection with a relevant product or service (applicable service)

shall include:

(a) the applicable service; and

(b) all other products or services, that are reasonably substitutable for the

applicable service, having regard to:

(i) the nature and function of the applicable service;

(ii) the geographic areas in which the applicable service is supplied or

acquired; and

(iii) the relevant persons that acquire or supply the applicable service.

(2) Subject to sub-section (3) and without limiting sub-section (1), the following
shall each be considered communications services markets for the purposes of

this Division:

(a) wholesale mobile voice call termination provided in the Kingdom by a
licensee to other network operators or service providers; and

(b) wholesale local access in the Kingdom.

(3) The Regulator may for the purposes of this Division, having regard to the

requirements of sub-section (1), determine, by declaration, that:

(a) a particular market shall be considered to be a communications services

market; or

(b) a market referred to in sub-sections (2)(a), (2)(b) or (3)(a) shall not be

considered to be a communications services market.

(4) Before making a declaration under sub-section (3), the Regulator shall carry

out a consultation under section 23.

(5) The Regulator may hold a consultation under sub-section (4) either:

(a) on its own initiative; or

(b) where the Regulator:

(i) has received a written request from any person asking the

Regulator to hold such a consultation; and

(ii) decides to hold a consultation after having regard to:

(A) whether the request under sub-paragraph (i) was made in

good faith; and

(B) any other matter it thinks is relevant.

(6) If the Regulator receives a written request under sub-section (5)(b)(i), the
Regulator shall:

(a) within 10 business days, publish a statement on its website notifying that

it has received the request; and

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(b) if the Regulator decides not to hold a consultation, publish a statement

notifying of its decision and of the reasons for the decision.

113 Substantial market power

(1) For the purposes of this Division, in determining whether a licensee has
substantial market power in a communication services market, regard shall be

had to:

(a) the terms of any licence under this Act;

(b) the extent to which the conduct of the licensee is constrained by:

(i) any competitors, or potential competitors, of the licensee; or

(ii) any person that the licensee:

(A) supplies goods or services to; or

(B) acquires goods or services from;

(c) the licensee’s market share in that or any other communications services

market;

(d) the power derived from any agreement, arrangement or understanding

the licensee has entered into with the Regulator, the Government of

Tonga, another licensee or any other person; and

(e) whether the licensee has access to any technology or infrastructure that

is not readily available to any other person.

(2) The list of matters that shall be taken into account in sub-section (1) does not

preclude the consideration of any other relevant matter in determining whether

a licensee has substantial market power in a communications services market

under this Division.

(3) In the absence of sufficient evidence to the contrary, a licensee shall be

presumed to have substantial market power in a communications services

market if the gross revenue derived by the licensee from the products or services

supplied by the licensee in that communications services market is greater than

or equal to 60 percent of the total revenue derived by all market participants in

the relevant communications services market.

(4) Nothing in this section precludes a finding that two or more licensees possess

substantial market power within the same communications services market.

(5) For the purposes of this section:

(a) "gross revenue" of a licensee shall be calculated as the sum of the market

value of all products or services supplied in the relevant communications

services market by the licensee; and

(b) "total revenue" derived by all market participants in the relevant

communications services market shall be calculated as the sum of the

market value of all products or services supplied in the relevant

communications services market.

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114 Competition guidelines

The Regulator may make such guidelines as it considers necessary or convenient for

or in connection with the performance of its functions under this Division.

SUBDIVISION B – PROHIBITIONS

115 General prohibition on anti-competitive conduct

A licensee shall not engage in any conduct which has the purpose or has or is likely

to have the effect of substantially lessening competition in a communication

services market.

116 Anti-competitive agreements

(1) A licensee contravenes this Division if it enters into or gives effect to any
agreement, arrangement or understanding with any one or more other licensees

which has the purpose, or has or is likely to have the effect of:

(a) fixing, controlling or maintaining the prices for, or any discount,
allowance, credit or rebate for, any relevant product or service;

(b) allocating as between the licensees, or any of them:

(i) the customers or potential customers;

(ii) the suppliers or potential suppliers;

(iii) the geographic areas, of a communications services market; or

(c) preventing, restricting or limiting:

(i) the supply or acquisition of a relevant product or service; or

(ii) access to a relevant product or service, by any person or class of

persons;

(d) ensuring that, in relation to a request for a bid or tender from a person for
the supply or acquisition of any relevant product or service, one or more

of the licensees that is a party to the agreement, arrangement or

understanding:

(i) does not submit a bid, or does not submit a bid that is likely to be

successful; or

(ii) submits a bid that is more likely to be successful than any other

licensee that is a party to the agreement, arrangement or

understanding.

(2) Sub-section (1) does not apply to a licensee that enters into, or gives effect to,
a provision that is:

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(a) in a joint venture agreement between one or more other licensees that

governs a joint venture for the supply or acquisition of a relevant product

or service; and

(b) necessary for the purposes of the joint venture mentioned in paragraph

(2)(a).

117 Prohibition on anti-competitive practices

(1) A licensee shall not supply a relevant product or service on the condition that
the person acquiring the relevant product or service shall agree to, or shall:

(a) acquire any other product or service from another person; or

(b) not acquire any product or service from any other person.

(2) A licensee shall not supply a relevant product or service to a relevant person on
the condition that the relevant person shall not:

(a) supply any relevant product or service to a person or class of persons; or

(b) acquire any relevant product or service from a person or class of persons.

(3) A licensee shall not refuse to supply a relevant product or service to a relevant
person for the reason that the relevant person:

(a) has supplied or acquired; or

(b) has not agreed not to supply or acquire,

any goods or services from another licensee.

(4) A licensee shall not supply a relevant product or service, to a person with a
requirement that the person shall not re-supply that relevant product or service

at a price:

(a) other than; or

(b) lower than,

a price specified by the licensee.

(5) A licensee shall have imposed a requirement on a person in contravention of
sub-section (4) if it:

(a) induces, or attempts to induce, a person by way of a commercial or other

incentive;

(b) makes it known that the licensee shall withhold supply of any good or

service if a person does not agree; or

(c) makes it known that a person shall suffer a commercial detriment if the

person does not agree, not to re-supply a relevant product or service at

a price that is:

(d) other than; or

(e) lower than,

a price specified by the licensee.

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(6) A licensee does not contravene sub-sections (1), (2), (3), or (4) in respect of any
conduct if the licensee is able to establish that the relevant conduct did not have

the purpose, or have the effect or likely effect of substantially lessening

competition in any communications services market.

118 Prohibition on misuse of substantial market power

(1) A licensee with substantial market power in a communications services market
shall not use that substantial market power for the purpose of:

(a) eliminating or substantially damaging another licensee in that market, or

in any other communications services market;

(b) preventing the entry of any other person into that market or any other

communications services market;

(c) deterring any other licensee from engaging in competitive conduct in that

or in any other communications services market.

(2) In determining whether a licensee has contravened sub-section (1), regard may
be had to any conduct involving the licensee:

(a) supplying a relevant product or service at a price that is equal to or less

than the cost to the licensee of supplying that relevant product or service

over a sustained period;

(b) refusing to supply a person with a relevant product or service that is

essential to the supply of another relevant product or service in the same

or any other communications services market;

(c) supplying a person with a relevant product or service referred to in

paragraph (2)(b) on terms that would prevent the person from supplying

another product or service in the same or any other communications

services market at a competitive price; or

(d) refusing to supply on a timely basis such technical information that is

necessary for a person to supply a relevant product or service.

(3) The Regulator may, by declaration, define "a sustained period" for the
purposes of sub-section (2).

119 Prohibition on discrimination

(1) Subject to sub-section (3), a licensee with substantial market power in a

communications services market shall not, in the supply of any relevant product

or service (relevant supply), make the relevant supply to a person on terms that

are less favourable than the terms on which the same relevant supply is made

to another person.

(2) For the purposes of determining whether a licensee has contravened sub-section

(1), regard may be had to the following terms on which the relevant supply is

made by a licensee to a person:

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(a) any fee or charge for the relevant supply;

(b) the performance characteristics of the relevant supply;

(c) the timeliness with which the relevant supply is made; and

(d) any conditions or restrictions on which the relevant supply is provided to

the person by the licensee.

(3) Nothing in this section prevents a licensee with substantial market power from
making a relevant supply to a particular person on terms different to that on

which a relevant supply is made to another in person in circumstances where

the difference results from the licensee making reasonable allowance for:

(a) a difference in the quantity in which the relevant supply is made;

(b) a difference in transmission capacities needed for the relevant supply;

(c) a difference in the geographic location the relevant supply is made to;

(d) the length of time over which the relevant supply is made; or

(e) any differences in the performance characteristics of the relevant supply.

120 Consolidations

(1) A licensee shall not, directly or indirectly, acquire any interest (a prohibited

interest) in:

(a) any other licensee; or

(b) the assets of any other licensee, without the prior written consent of the

Regulator.

(2) For the purposes of sub-section (1), a prohibited interest includes any legal or

beneficial interest acquired by a licensee that satisfies the requirements of sub-

sections (1)(a) or (1)(b).

(3) A licensee or a person acting on behalf of a licensee may make a written

application to the Regulator to provide its written consent for a licensee to

obtain a prohibited interest.

(4) The Regulator may make rules regarding what information shall be included in

an application in order for it to be a valid application for written consent in

accordance with sub-section (3).

(5) Upon receipt of a valid application, the Regulator shall provide its written

consent for a licensee to acquire a prohibited interest unless the Regulator is

satisfied that the acquisition by the licensee of the prohibited interest:

(a) shall have the effect; or

(b) is materially likely to have the effect, of substantially lessening

competition in a communications services market.

(6) Before making rules under sub-section (4), the Regulator shall carry out a

consultation under section 23.

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121 Authorisation

(1) Subject to this Division, the Regulator may, upon application by a licensee,

grant an authorisation to a licensee in respect of any conduct that would or may

contravene this Division, other than conduct which would or may contravene

section 118(1) or section 120.

(2) A licensee shall not contravene this Division in respect of conduct which is the

subject of an authorisation that has been granted to the licensee in accordance

with this section.

(3) An application for authorisation in accordance with this section shall:

(a) be submitted to the Regulator in a manner and in a form;

(b) be accompanied by such documents and supporting information; and

(c) be accompanied by the applicable fee (if any),

as determined by the Regulator under the rules made in accordance with

sub-section (4).

(4) The Regulator shall make rules specifying the procedure to be followed for the

determination of an application for authorisation in accordance with

this section.

(5) Before making rules under sub-section (4), the Regulator shall carry out a

consultation under section 23.

(6) The Regulator shall keep a register of all:

(a) applications for authorisations received;

(b) authorisations granted; and

(c) authorisations revoked,

by the Regulator.

(7) The Regulator shall not grant an application for authorisation submitted by a

licensee in accordance with this section unless the Regulator is satisfied that, in

all the circumstances, the public benefits to be derived from the conduct that is

the subject of the authorisation application are likely to outweigh the public

detriments that are likely to result from that conduct.

(8) An authorisation granted by the Regulator in accordance with this section shall

commence on the date specified in the authorisation and remain in force for a

period of:

(a) 2 years; or

(b) such other period that is less than 2 years as the Regulator may decide in

its discretion.

(9) During the period in which an authorisation is in force, the Regulator may vary

an authorisation:

(a) upon application by the licensee that holds the authorisation; and

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(b) if the Regulator is satisfied that it is appropriate to do so, having regard

to the matters in sub-section (7) and any other relevant considerations.

(10) During the period in which an authorisation is in force, the Regulator may

revoke an authorisation if the Regulator is satisfied:

(a) the authorisation was granted on the basis of evidence or information

which was false or misleading in a material way;

(b) a condition on which the authorisation was expressed to be granted has

not been, or is no longer, complied with; or

(c) there has been a material change in the circumstances that led to the

Regulator granting the authorisation.

(11) Nothing in this section precludes a licensee from applying for an authorisation

for conduct that has been the subject of an authorisation that:

(a) has expired; or

(b) was revoked in accordance with sub-section (10).

DIVISION 2 - ACCESS TO DECLARED SERVICES

SUBDIVISION A – DECLARED SERVICES

122 Objectives of Division 2

The objectives of Division 2 are:

(a) to promote effective competition in markets for communications services for

the long-term benefit of end users of communications services within Tonga by

providing for the regulation of the supply of certain communications services

between licensees;

(b) to promote the economically efficient use of, and the economically efficient

investment in, the communications facilities by which communications

services may be supplied; and

(c) to provide for access on an equitable and non-discriminatory basis and

costbased interconnection for licensees, and to promote end-to-end

connectivity of separate communications networks.

123 Public inquiry into declared services

(1) The Regulator may hold a public inquiry into whether:

(a) an eligible service shall be declared under section 125 (including the

appropriate terms of that declaration); or

(b) an existing declaration under section 125 or 127 shall be revoked or

varied (including the appropriate terms of that revocation or variation).

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(2) The Regulator may hold a public inquiry under sub-section (1) either:

(a) on its own initiative; or

(b) where the Regulator:

(i) has received a written request from any person asking the

Regulator to hold such a public inquiry; and

(ii) decides to hold a public inquiry after having regard to:

(A) the objectives in section 122;

(B) whether the request under sub-section (i) was made in good

faith; and

(C) any other matter it thinks is relevant.

(3) If the Regulator receives a written request under sub-section (2)(b)(i), the

Regulator shall:

(a) within 10 business days, publish a statement on its website notifying that

it has received the request; and

(b) if the Regulator decides not to hold a public inquiry, publish a statement

notifying of its decision and of the reasons for the decision.

(4) The Regulator shall hold a public inquiry under sub-section (1) upon receipt of

a written direction from the Minister directing the Regulator to do so.

(5) After deciding to hold a public inquiry under sub-section (2) or receiving a

written direction under sub-section (4), the Regulator:

(a) shall publish a notice of:

(i) the fact that it is holding the inquiry;

(ii) the period during which the inquiry is to be held;

(iii) the nature of the matter to which the inquiry relates;

(iv) the period within which, and the form in which, members of the

public may make submissions to the Regulator about that matter;

(v) the matters that the Regulator would like such submissions to deal

with; and

(vi) the address or addresses to which submissions may be sent.

(b) may publish a discussion paper that:

(i) identifies the issues that, in the Regulator’s opinion, are relevant

to that matter; and

(ii) sets out such background material about, and discussion of, those

issues as the Regulator thinks appropriate;

(c) shall consider all submissions that have been received within the period,

and are substantially in the form, notified under sub-section

(5)(a)(iv); and

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(d) after considering all submissions that satisfy sub-section (5)(c), shall

publish a report setting out its findings as a result of the inquiry and give

a copy of the report to the Minister.

(6) For the purposes of sub-section (5), the period within which members of the

public may make submissions to the Regulator shall be no less than 20 business

days.

124 Declared services recommendation

(1) The Regulator may, by notice in writing, recommend that the Minister declare
a particular eligible service or revoke or vary an existing declaration if:

(a) the Regulator has held a public inquiry under section 123 about the

proposal to make, revoke or vary the declaration (as applicable);

(b) the Regulator has complied with the requirements section 123; and

(c) the Regulator is satisfied that the making, revocation or variation of the

declaration (as applicable) satisfies the declaration criteria.

(2) In considering whether the making or variation of a declaration satisfies the

declaration criteria under sub-section (1)(c), the Regulator may have regard to

whether the making or variation (as applicable) of the declaration is necessary

to overcome the substantial market power of one or more licensees in a market

for an eligible service.

(3) A recommendation under sub-section (1) shall be made within 6 months of the

publication of the report under section 123(5)(d).

(4) A recommendation to make or vary a declaration under sub-section (1) shall

specify the terms of the declaration (including the period for which the eligible

service will be a declared service).

125 Ministerial declaration of an eligible service

(1) On receiving a declaration recommendation from the Regulator, the Minister

shall, not before 10 business days after receiving the declaration

recommendation, either:

(a) by declaration, accept the declaration recommendation and

(as applicable):

(i) specify the eligible service to be a declared service on the terms

recommended under section 124;

(ii) vary the existing declaration on the terms recommended under

section 124; or

(iii) revoke the existing declaration; or

(b) reject the declaration recommendation and not declare the eligible

service or vary or revoke the existing declaration (as applicable).

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(2) In making a decision under sub-section (1), the Minister:

(a) shall have regard to the declaration criteria and the declaration

recommendation, including any report under section 123(5)(d); and

(b) may have regard to such other matters as the Minister considers are

relevant, provided that the Minister identifies those other matters in the

Minister's published decision under sub-section (4).

(3) If the Minister does not, within 40 business days after receiving the declaration

recommendation, make a decision to accept or reject the declaration

recommendation, then the Minister is deemed, at the end of that 40 business

day period, to have accepted that recommendation and made the declaration.

(4) The Minister shall notify the Regulator in writing of a decision under this
section as soon as practicable after making that decision and, if the Minister’s

decision is to reject the declaration recommendation, the Minister shall publish

reasons for the rejection within 20 business days of that rejection.

126 Declaration criteria

The "declaration criteria" are as follows:

(a) the declaration of the eligible service:

(i) will further the achievement of the objectives set out in section 122;

(ii) is necessary for the promotion of effective competition in at least one

market other than the market for the eligible service; and

(iii) is consistent with any general policy directions notified to the Regulator

by the Minister under section 21;

(b) in the case of eligible services that are wholesale access services:

(i) the wholesale access service is supplied in whole or in part via a

communications facility that cannot feasibly be substituted, as a matter

of commercial reality, via another communications facility in order to

supply that wholesale access service;

(ii) access to the wholesale access service (as a consequence of declaration)

is technically feasible having regard to the technology available or likely

to become available, the reasonableness of the costs involved and the

effect of supplying the communications services on the integrity,

operation or performance of other communications services or facilities;

and

(iii) the declaration of the wholesale access service would not materially

compromise the incentives to innovate or incentives for efficient

investment in any communications facility over which the wholesale

access service may be supplied;

(c) in the case of eligible services that are facilities access services:

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(i) there is likely to be significant demand from end users or potential end

users for the communications services for which access to the passive

facility is required;

(ii) the passive facility is essential for the provision of communications

services;

(iii) access to the facilities access service would avoid inefficient replication

of underlying facilities that may be efficiently shared;

(iv) the lack of access to the passive facility presents a barrier to entry into

the market of a new licensee or to expansion of an existing licensee; and

(v) the declaration of the facilities access services would not materially

compromise the incentives to innovate or incentives for efficient

investment in any passive facility for which access is sought.

127 Deemed declared services

(1) As soon as practicable after the commencement of this section, the Regulator

shall, by declaration, deem the following services to be declared services:

(a) on such terms as it thinks fit having regard to the declaration criteria:

(i) a domestic fixed terminating access service;

(ii) a domestic mobile terminating access service;

(iii) access to and interconnection with international cable capacity;

(iv) co-location space and physical access to international cable

landing stations (including essential services at those stations);

(v) wholesale carriage over backhaul fibre from any international

cable landing station to the first exchange at which interconnection

is offered; and

(vi) a facilities access service for towers, poles, masts or similar

structures used to supply a radiocommunications service; and

(b) on the terms which are to be set out in the relevant universal service

agreement, a facilities access service for universal service facilities,.

(2) The declaration of an eligible service under this section can be amended or

revoked under sections 123 to 125, but only after 5 years of the commencement

of this section.

128 Register of declared services

(1) The Regulator shall keep a register in relation to declarations under section 34.

(2) The register under sub-section (1) shall:

(a) include the following:

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(i) particulars of all such declarations (including declarations that

have been revoked);

(ii) particulars of variations and revocations of such declarations; and

(iii) copies of reports prepared under section 123(5)(d);

(b) be maintained by electronic means; and

(c) be published by the Regulator on its website.

SUBDIVISION B – SUPPLY OF DECLARED SERVICES

129 Access to facilities and services

(1) Subject to sub-sections (2) and (3), a providing licensee shall, if requested in

writing to do so by a requesting licensee, supply the requesting licensee a

declared service.

(2) The providing licensee is not required to comply with sub-section (1) unless:

(a) where the requesting licensee’s request under sub-section (1) is for the

supply of a facility access service, the access is for the sole purpose of

enabling the requesting licensee to:

(i) provide competitive communications facilities or communications

services; or

(ii) establish its own communications facilities;

(b) where the requesting licensee’s request under sub-section (1) is for the

supply of a wholesale access service, the access is for the sole purpose

of enabling the requesting licensee to supply communications services,

or content applications services; and

(c) the requesting licensee gives the providing licensee reasonable notice

that the requesting licensee requires the access.

(3) Nothing in this Division imposes an obligation on a providing licensee who

receives a request from a requesting licensee for the supply of a

declared service:

(a) to the extent that the obligation would:

(i) prevent the providing licensee or a licensee who already has access

to the declared service from obtaining a sufficient amount of the

service to be able to meet their reasonably anticipated

requirements over the following 24 months measured at the time

when the request was made; or

(ii) prevent a person from obtaining, by the exercise of a right under a

contract that was in force at the time when the request was made,

a sufficient level of access to the declared service to be able to

meet the person's actual requirements; or

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(b) that would require a providing licensee to supply a declared service if

there are reasonable grounds to believe that:

(i) the requesting licensee would fail, to a material extent, to comply

with the terms and conditions on which the providing licensee

supplies the declared service; or

(ii) the requesting licensee would fail, in connection with that

obligation, to protect the integrity of a communications network

or the safety of individuals working on, or using services supplied

by means of, a communications network or a communications

facility.

(4) Examples of grounds for the belief in sub section (3)(b)(i) include:

(a) evidence that the requesting licensee is not creditworthy; or

(b) repeated failures by the requesting licensee to comply with the terms and

conditions on which the same or similar access has been provided

(whether or not by the providing licensee).

130 Standard obligations for supply of declared services

(1) Where a providing licensee is required to supply a declared service to a

requesting licensee under section 129, the providing licensee shall:

(a) meet all reasonable requests for interconnection at any technically

feasible point where interconnection would not affect the security,

performance or efficiency of the providing licensee’s network;

(b) maintain end-to-end operability to facilitate the provision of

communications services by the requesting licensee to its customer

notwithstanding that the customer is directly connected to the providing

licensee’s communications network;

(c) supply the declared services on terms that do not unfairly discriminate

between requesting licensees and are of at least the same or more

favourable technical standard and quality as those the providing licensee

provides for its own communications services or those of its affiliates;

(d) provide access to communications facilities, communications networks,

software and services (including colocation):

(i) as is reasonably required for the requesting licensee to

interconnect and provide communications services to its customer;

and

(ii) in a manner that is sufficiently unbundled so that the requesting

licensee does not need to pay for communications facilities,

communications networks, software and services that it does not

need to provide communications services to its customers;

(e) take all reasonable steps to ensure that the requesting licensee receives,

in relation to the declared service supplied to the requesting licensee:

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(i) fault detection, handling and rectification; and

(ii) ordering and provisioning,

of a technical and operational quality and timing that is equivalent

to that which the providing licensee provides to itself or its

affiliates;

(f) only use information received from a requesting licensee for the purposes

for which it was supplied to the providing licensee and not disclose the

information or otherwise use the information to obtain a competitive

advantage;

(g) make available to, upon request from a requesting licensee, in a timely

manner all information, including technical specifications and other

commercially relevant information, reasonably required for

interconnection and for the requesting licensee to provide

communication services to its customers; and

(h) provide, upon request from a requesting licensee, such billing

information in connection with matters associated with, or incidental to,

the supply of the declared service as is reasonably required to enable the

requesting licensee to provide accurate and timely billing information to

customers of its communications services.

131 Terms of access

The terms and conditions of the supply of declared services under sections 129 and

130 are to be set in one or more of the following ways:

(a) by agreement between the providing licensee and the requesting licensee;

(b) by entry into an approved reference offer under section 138; or

(c) to the extent that the requesting licensee’s request under section 129 is for a

declared service that is not covered in an approved reference offer submitted by

the providing licensees, by arbitration under section 133.

132 Preparation of interconnection and access rules

(1) The Regulator may make rules about interconnection and access, setting out:

(a) the pricing principles for declared services that promote the achievement

of the objects of this Act and of this Part, including, if appropriate,

acceptable price ranges;

(b) any minimum requirements for agreements for the supply of

declared services;

(c) any limitations that may apply to the term of such agreements or to parts

of such agreements;

(d) any technical standards for interconnection and access; and

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(e) such other matters that are relevant and necessary for the purposes of

interconnection and access.

(2) Before making rules under sub-section (1), the Regulator shall carry out a

consultation under section 23 of the Act.

SUBDIVISION C – ARBITRATION AND NEGOTIATED AGREEMENTS

133 Arbitration

(1) Where:

(a) a providing licensee is required to supply a declared service to a

requesting licensee under section 129;

(b) the providing licensee and the requesting licensee cannot agree on terms

and conditions of the supply of the declared service; and

(c) the terms and conditions do not relate to the supply of a declared service

covered in an approved reference offer submitted by the providing

licensees,

either licensee may, in writing, request that the Regulator determine the

terms and conditions in an arbitration under this section.

(2) The Regulator shall only conduct arbitration under this section where it is

satisfied that the licensees have had reasonable opportunity to negotiate on the

terms and conditions for the supply of the declared services and such

commercial negotiations between the licensees have failed.

(3) Where the Regulator accepts the request for arbitration under sub-sections (1)

and (2):

(a) the Regulator shall notify both parties in writing of its acceptance of the

request for arbitration;

(b) the providing licensee and requesting licensee shall have 2 months from

the date of the notice under paragraph (a) (unless the Regulator, with the

consent of both licensees, determines otherwise) to provide submissions

to the Regulator;

(c) the Regulator shall provide the providing licensee and requesting

licensee with copies of each other’s submissions;

(d) the providing licensee and requesting licensee shall have 10 business

days from receipt of the other licensee’s submissions under paragraph (c)

(unless the Regulator, with the consent of both licensees, determines

otherwise) to provide the Regulator with a written reply to the other

licensee’s submission; and

(e) the Regulator shall, within 6 months of the notice under paragraph (a),

determine the terms and conditions of the supply of declared services

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under section 131(c) and notify the providing licensee and requesting

licensee of its decision and those terms and conditions.

(4) In determining terms and conditions under sub-section (3)(e), the Regulator

shall have regard to:

(a) written submissions and replies made by the parties to the arbitration in

accordance with sub-section (3);

(b) the interconnection and access rules;

(c) the requirements of sections 129 and 130;

(d) any relevant approved reference offers submitted by the access provider

or any other licensee under Subdivision D; and

(e) whether the terms and conditions are reasonable having regard to the

following matters:

(i) the extent to which the terms and conditions are likely to further

the achievement of the objectives in section 122;

(ii) the legitimate business interests of the licensees concerned, and

the provider licensee's investment in facilities used to supply the

declared service concerned;

(iii) the interests of any persons who have rights to use the declared

service concerned;

(iv) the operational and technical requirements necessary for the safe

and reliable operation of communications services and

facilities; and

(v) terms and conditions under which similar communications

services are offered in other jurisdictions.

(5) Subject to sub-sections (3) and (4), the Regulator may, by written notice, set

the rules applying to an arbitration under this section.

(6) In determining terms and conditions for access under this section for the

purposes of section 131(c), the Regulator may determine that those terms and

conditions shall take effect from the date that a licensee requested the Regulator

determine the terms and conditions under section 133(1).

(7) A licensee shall file a copy of any agreement that is on terms and conditions

determined under this section within 10 business days of entry into

the agreement.

134 Negotiated agreements

(1) If a licensee supplies a declared service to another licensee in accordance with

an agreement that was neither:

(a) an agreement with terms and conditions determined under section 133; or

(b) entered into in accordance with section 131(b),

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the Regulator may, by written notice, direct the licensees to amend the

agreement to make it consistent with the matters referred to in section

133(4)(b) to (c).

(2) Before issuing a written notice under sub-section (1), the Regulator shall:

(a) notify the parties to the agreement that it is considering exercising its

power under sub-section (1);

(b) provide the parties with a reasonable opportunity to make submissions to

the Regulator; and

(c) consider all submissions that have been received in accordance with sub-

section (2)(b).

(3) The parties to the agreement shall comply with a notice under sub-section (1)

or terminate the agreement.

(4) A licensee that is a party to an agreement referred to in sub-section (1) shall file

a copy of that agreement to the Regulator:

(a) where the agreement was entered into before the commencement of this

section, within 20 business days of the commencement of this section;

(b) where the agreement is relates to a declared service that was not a

declared service at the time the agreement was entered into, within 20

business days of the declaration; and

(c) in any other case, within 10 business days of entry into the agreement.

SUBDIVISION D – REFERENCE OFFERS

135 Submission of proposed reference offers

(1) The Regulator may, by written notice, direct a providing licensee to produce

and submit (within a specified time) a proposed reference offer for a declared

service consistent with the matters referred to in section 133(4)(b) to (e).

(2) A licensee may, on its own initiative, submit a proposed reference offer for an

eligible service.

136 Review of proposed reference offers

(1) The Regulator shall undertake a public consultation about any proposed

reference offer submitted by a licensee under sections 135 or 137.

(2) In undertaking the public consultation under sub-section (1), the Regulator shall

publish a notice of:

(a) the fact that it is holding the consultation;

(b) the period during which the consultation is to be held;

(c) the nature of the matter to which the consultation relates;

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(d) the period within which, and the form in which, members of the public

may make submissions to the Regulator about that matter;

(e) the matters that the Regulator would like such submissions to deal

with; and

(f) the address or addresses to which submissions may be sent.

(3) For the purposes of sub-section (2), the period within which members of the

public may make submissions to the Regulator shall be no less than 20 business

days.

(4) After completing the public consultation in sub-section (1) and (2) or receiving

a proposed reference offer under sub-section (6), the Regulator may, by written

notice to the licensee:

(a) approve the proposed reference offer;

(b) reject the proposed reference offer; or

(c) direct the providing licensee submit a revised proposed reference offer

under section 135(1) within a specified time.

(5) In deciding how to exercises its power under section 136(4), the Regulator shall

have regard to:

(a) all submissions that:

(i) have been received within the period notified under subsection

(2)(d); and

(ii) are substantially in the form notified under sub-section (2)(d); and

(b) the matters referred to in section 133(4)(b) to (e).

(6) If a licensee fails to comply with sections 135(1) or 136(4)(c) in good faith, the

Regulator may by written notice to the licensee:

(a) determine an approved reference offer to apply for that licensee, having

regard to the matters referred to in sub-section (5); or

(b) direct the licensee to take specified action (such as to engage a consultant

to prepare a proposed reference offer for reassessment by the Regulator

under sub-section (4)).

(7) A licensee shall comply with a direction under sub-section (6)(b) except where

the licensee no longer supplies or intends to supply declare services (to itself or

any other person).

(8) The Regulator shall publish reasons for any rejection of a proposed reference

offer under sub-section (4)(b), determination of an approved reference offer

under sub-section (6)(a) or a direction under sub-sections (4)(c) or (6)(b).

137 Reassessing and varying reference offers

(1) The Regulator may, upon request of any person or on its own initiative, reassess

an approved reference offer submitted by a licensee if the Regulator reasonably

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believes that the approved reference offer is inconsistent with the matters

referred to in section 133(4)(b) to (e).

(2) If the Regulator decides to reassess an approved reference offer under

subsection (1), the Regulator and the licensee shall comply with the process

under section 136 as if the approved reference offer was a proposed reference

offer submitted under section 135.

(3) A licensee may submit a variation to an approved reference offer submitted by

that licensee, in which case:

(a) subject to paragraph (b), the Regulator and the licensee shall comply with

the process under section 136 as if the variation was a proposed reference

offer submitted under section 135; or

(b) if the Regulator is satisfied that the variation would have no more than a

minor detrimental impact on requesting licensees or other licensees, the

Regulator may approve the variation without engaging in consultation

under section 136, but shall provide licensees that it considers may be

affected with a reasonable opportunity to comment on the

proposed variation.

138 Publication and entry into approved reference offers

(1) A licensee shall:

(a) publish all of its approved reference offers on its website; and

(b) where a licensee requests a copy of an approved reference offer, provide

that licensee with a copy of that approved reference offer within 5

business days of the request.

(2) Where a requesting licensees notifies a providing licensees that it wishes to

enter into an approved reference offer submitted by that licensee, the providing

licensee shall:

(a) within 10 business days of the receipt of the notice from the requesting

licensee enter into an agreement with the requesting licensee in the form

of the providing licensee’s approved reference offer; and

(b) within 10 business days of entry into the agreement referred to in

paragraph (a), file that agreement with the Regulator.

SUBDIVISION E – REGISTERS

139 Register of approved reference offers

The Regulator shall maintain a register of all approved reference offers.

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140 Register of access agreements

The Regulator shall maintain a register of all access agreements.

141 Register of agreements for the supply of eligible services

(1) A providing licensee shall file with the Regulator all agreements for the supply

of eligible services (other than access agreements) within 10 business days after

they are entered into.

(2) The Regulator shall maintain a register of all agreements referred to in

subsection (1) but shall not make the register or those agreements available to

the public.

DIVISION 3 - COMMUNICATIONS SECTOR PERFORMANCE MONITORING

142 Regulator to monitor licensees

The Regulator shall be responsible for monitoring the operational performance and

activities of licensees.

143 Reporting to Minister

(1) The Minister may direct the Regulator by written notice to prepare and submit

a report to him on the performance or activities of licensees.

(2) The Regulator must comply with a written notice under sub-section (1).

144 Contents of report

A report prepared under section 143 may include but shall not be limited to:

(a) industry development matters in general;

(b) the activities undertaken by licensees;

(c) service quality standards; and

(d) any other matter as may be required by the Minister.

DIVISION 4 - INQUIRIES AND INVESTIGATIONS.

145 Minister may direct Ministry or Regulator to hold inquiry

The Minister may direct the Ministry or Regulator, by written notice, to hold an

inquiry on matters:

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(a) of a general nature which relate to the administration of this Act,

(b) which relate to a specific issue connected with the administration of this Act; or

(c) which will otherwise serve the objectives of this Act.

146 Ministry may initiate an inquiry

The Minister may only initiate an inquiry if it is satisfied that the matter is of

significant interest to either the public or current or prospective licensees.

147 Minister may make rules of inquiry

The Minister may make rules for the conduct of an inquiry under section 145 and

section 146.

DIVISION 5 - APPLICATION OF CONSUMER PROTECTION ACT

148 Consumer Protection Act

(1) The Consumer Protection Act shall not apply to any conduct to which this Part

or Division 1 of Part VI applies, or would apply but for an exception or an

authorisation under this Division.

(2) The Regulator and the Consumer Affairs Division may enter into a binding

memorandum of understanding or other arrangement setting out the division of

responsibilities between the two bodies and specifying procedures for

cooperating, sharing information and for resolving any potential overlap or

uncertainty in relation to their respective functions and powers under this Act

and any other legislation affecting the communications sector (including the

Consumer Protection Act).

(3) In the event of the enactment of any legislation amending or repealing the

Consumer Protection Act in whole or in part, the Regulator shall, with the

approval of the Minister, conduct a review of this Division to determine

whether any consequential amendments are required to this Division.

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PART XI - MISCELLANEOUS

DIVISION 1 - INSTALLATION OF COMMUNICATIONS FACILITIES, ACCESS TO
LAND, ETC.

149 Power of entry

A network operator or its agent:

(a) may enter upon lands for the purpose of erecting, removing, fixing, altering or

examining any communications facility and may remain on the land for such

reasonable time and do all such works and things as may be expedient for the

purpose of this Act;

(b) may survey and take levels of any such land or any part thereof and also

excavate and remove any earth, stone, soil, sand and gravel whatsoever and any

trees suitable either for the construction, alteration or repair of any such

communications facility or any part thereof or for any other works in

connection with any such communications facility;

(c) may cut and remove for a space not exceeding in any case 20 metres on each

side of any proposed or existing communications facility all such trees and

underwood as would be likely to interfere with the construction and proper

working of any such communications facility;

(d) for the purpose of obtaining access to any communications facility may enter

into an agreement with the owner or occupier of any land traversed by or

adjoining any communications facility for the erection of any gate on such land

and when any agreement shall be so made may by itself or its agent erect,

maintain and use any such gate for the purpose of obtaining access to any such

communications facility; and

(e) may erect, construct and maintain communications facilities along, across, over

or under any road, street or highway and for any such purposes may open up

any road and alter the position thereunder of any pipe (other than a main for the

supply of water or gas).

150 Public traffic not to be interrupted

(1) Where a network operator erects or constructs any communications facility:

(a) across or over any road, the network operator shall place such

communications facility at such a height as not to hinder or interfere with

the passage of any person or vehicle along the road;

(b) over or under any navigable waters, the network operator shall place such

communications facility in such a manner as not to interfere with the

navigation of such waters.

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(2) Where a network operator alters, repairs or removes any communications

facility which has been placed across or over any road or over or under any

navigable water, the network operator shall not cause any obstruction to the

traffic upon or the use of such road or navigable water.

151 Entry by day and notice to be given

Subject to sections 152 and 153, a network operator or its agents shall not enter upon

any lands other than Government lands:

(a) for the purpose of constructing or removing any communications facility except

by day; and

(b) until after giving 5 business days’ notice to such owner, occupier or agent of

the intention to construct such communications facilities upon such land.

152 Notice of entry when owner cannot be found

If the owner or occupier of the land proposed to be entered upon for the purposes of

establishing or maintaining a communications facility cannot after reasonable inquiry

be found it shall be sufficient if a network operator causes to be posted in a

conspicuous place on such land a notice in writing stating the network operator’s

intention to enter on such land at the expiration of 5 business days from the date of

the notice. Upon expiry of the time mentioned in the said notice the network operator

or its agents may exercise all the powers conferred under this Act as if notice had been

served on the owner or occupier of such land or its agent.

153 Entry without notice for inspection and repair

Notwithstanding section 151 a network operator or its agent may, without giving any

notice, enter at reasonable times upon lands for the purposes of inspecting, altering or

repairing any communications facility.

154 Compensation

(1) In establishing or maintaining a communications facility, a network operator or

its agents shall do as little damage as is reasonable.

(2) Where any person:

(a) having any rights or interest in the lands acquired for the purposes of

establishing or maintaining a communications facility; or

(b) is injuriously affected or suffers any property damage as a result of the

network operator or its agent establishing or maintaining a

communications facility,

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that person shall be entitled to compensation. Such compensation shall

be ascertained by two arbitrators one of whom shall be appointed by the

person claiming compensation and the other by the network operator.

(3) The two arbitrators shall appoint a third arbitrator who shall act as an umpire.

If the arbitrators fail to agree on the amount of compensation if any to be

awarded, the umpire shall consider the evidence and decide on the matter.

(4) The decision of the arbitrators or the umpire, as the case may be, shall be final

and binding.

(5) Where an act or thing has been done with the consent of the person claiming

compensation, no compensation shall be awarded or payable save and except

in the case of gross negligence, wilful default or where compensation has been

agreed to in a written agreement.

155 Removal of trees etc. damage to communications facilities

If a network operator is of the opinion that any communications facility is or is likely

to be in any manner damaged or obstructed by any tree or shrub whether ornamental

or otherwise growing or being on any land adjoining such communications facility or

over which such communications facility passes or is carried, the network operator or

its agent may remove such tree or shrub or part thereof and no action at law shall be

maintainable on account of such removal provided such acts have been effected in

such a manner as to cause no unnecessary damage.

156 Accidental damage to communications facilities

Any person who by misconduct or negligence causes any damage or destroys any

communications facility or any part of a communications facility or the material or

property relating to a communications facility shall on conviction, be liable to a fine

not exceeding $5,000 or in default of payment, to imprisonment for any term not

exceeding 3 months.

157 Damage by careless driving

If any damage is caused to any communications facility by any motor vehicle or by

any vehicle drawn by a horse or other animal (animal vehicle), or by anything loaded

on any motor vehicle or animal vehicle, the driver or person in charge of any such

motor vehicle or animal vehicle shall prima facie be deemed to be guilty of an offence

under section 156 without any proof of negligence or misconduct, but such person

shall be entitled to rebut such presumption.

158 In addition to penalty any damage to be made good

Every person causing damage to any communications facility shall be liable to make

good the damage to the amount to be determined by a Court of competent jurisdiction

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even though the person may have been fined or imprisoned under this Act for the said

damage.

DIVISION 2 - PENALTY AND OFFENCES

159 General penalty

(1) Every omission or failure to comply with, and every act done or attempted to

be done contrary to this Act or any instrument made under this Act (other than

guidelines) shall be deemed to be an offence against this Act.

(2) For every such offence, where not otherwise specifically provided for, the

offender shall be liable upon conviction to a fine not exceeding $10,000 or to a

term of imprisonment not exceeding 3 years or both and in addition a Court of

competent jurisdiction may order anything seized to be forfeited.

(3) Prosecutions under this Act may be brought:

(a) by or on behalf of the Attorney General; or

(b) by or on behalf of the Regulator.

(4) A person referred to in sub-section (3)(b), whether or not a law practitioner,

may lay, institute or conduct any charge, information, complaint or other

proceeding arising under this Act, subject to any directions issued by the

Attorney General.

160 Civil actions

(1) The Regulator may institute proceedings for the recovery of a pecuniary penalty

imposed on a person under sub-section (2) in a Court of competent jurisdiction.

(2) A Court of competent jurisdiction may order a person to pay a pecuniary

penalty if the Court is satisfied that a person:

(a) has contravened a provision of this Act or any instrument made under

this Act (other than guidelines); or

(b) has:

(i) attempted to contravene;

(ii) aided or abetted another person to contravene;

(iii) induced, or attempted to induce, another person to contravene; or

(iv) been a party to, or knowingly concerned in, a contravention by

another person of,

a provision of Division 1 of Part IX.

(3) The standard of proof in a proceeding under sub-section (1) is the standard of

proof applying in civil proceedings.

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(4) A proceeding under sub-section (1) shall be commenced within 3 years after

the relevant contravention concerned.

(5) Subject to sub-section (6), a pecuniary penalty under sub-section (2) shall be an

amount the Court determines appropriate having regard to all relevant matters

including:

(a) the nature and extent of the contravention and of any loss or damage

suffered as a result of the contravention;

(b) the circumstances in which the contravention took place; and

(c) whether the person has previously been found by a Court of competent

jurisdiction in proceedings under this Act to have engaged in any similar

conduct.

(6) The pecuniary penalty payable under sub-section (5):

(a) by an individual, shall not exceed $5,000 for a first contravention or, for

a subsequent contravention, the greater of $10,000 or 3 times the value

of the benefit that the individual has obtained directly or indirectly from

the contravention; and

(b) by a body corporate, shall not exceed —

(i) in the case of a contravention of a term or condition of a licence or

the obligations set out in Division 2 of Part IX, the greater of

$20,000 or 3 times the value of the benefit that the body corporate

has obtained directly or indirectly from the contravention; or

(ii) in any other case, $10,000 for a first contravention or, for a

subsequent contravention, $20,000.

(7) Where the conduct involves multiple contraventions of Act, a proceeding may

be instituted under this section against a person in relation to each

contravention, but the person is not liable to more than one pecuniary penalty

under this section in respect of the same conduct.

(8) Any pecuniary penalties payable under this Act are to be paid into the Universal

Service Fund.

161 Other remedies

(1) Where a Court is satisfied that a person has contravened the Act or any

instrument made under this Act (other than guidelines), it may, upon the

application of the Regulator:

(a) declare any rights;

(b) order an account to be taken;

(c) rescind any contract;

(d) order money to be refunded to any person;

(e) order that any profits derived or substantially derived by a contravention

of this Act be forfeited to the Universal Service Fund;

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(f) make an order for any mandatory or prohibitive injunction, whether

temporary or permanent;

(g) where the person has acquired an interest in contravention of section 120,

divest them of that interest;

(h) order that the person publish, at the person’s expense, such information

as the Court considers appropriate in an advertisement that is in a form

and in a manner specified by the Court;

(i) order the person to establish a training or compliance program for the

purposes of ensuring that the person and its employees, agents, and other

representatives, does not engage in any further contraventions; or

(j) make any other non-punitive orders that the Court considers appropriate.

(2) In determining the appropriateness and the terms of any remedy under this

section, the court is to have regard to the general principles associated with such

remedies as applied by courts of civil jurisdiction from time to time.

162 Infringement notices

(1) If the Regulator has reasonable grounds to believe that a person has contravened

an infringement notice provision, the Regulator may issue an infringement

notice.

(2) An infringement notice is not effective unless it:

(a) is issued in respect of a single alleged contravention of an infringement

notice provision;

(b) is issued within 12 months of the occurrence of the alleged contravention

to which it relates;

(c) is the only infringement notice issued in respect of the alleged

contravention to which it relates; and

(d) contains the information specified in sub-section (3).

(3) An infringement notice shall contain:

(a) details of the alleged contravention of the infringement notice provision,

including the date the contravention is alleged to have occurred;

(b) information on how to contact the Regulator in relation to the

infringement notice;

(c) information about:

(i) the amount of the penalty that is to be paid by the licensee;

(ii) the time in which it shall be paid, which shall not be less than 20

business days (infringement notice period); and

(iii) the means by which it can be paid; and

(d) any such other information as the Minister may require by regulation.

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(4) Within 48 hours of issuing an infringement notice under sub-section (1), the

Regulator shall lodge the duplicate notice with the Clerk of the Magistrates’

Court for the district.

(5) If no payment is tendered within the infringement notice period:

(a) the Clerk of the Magistrates’ Court shall issue a summons to the person

for the offence alleged; and

(b) the summons shall be heard and determined by a Magistrate.

(6) If a licensee pays a penalty specified in an infringement notice within the notice

period:

(a) the licensee is not regarded as having contravened this Act; and

(b) no other remedies or proceedings may be brought against the licensee in

respect of the conduct that is the subject of the alleged contravention of

the infringement notice provision in the infringement notice.

(7) The Minister may make a declaration specifying:

(a) any provisions of this Act that will be infringement notice provisions;

and

(b) the amount of any penalty that may be payable under an infringement

notice in respect of an infringement notice provision.

163 Enforceable undertakings

(1) The Regulator may accept a written undertaking from a licensee in connection
with any conduct to which this Act applies, including but not limited to

undertakings that the person will:

(a) cease or remedy any specified acts or omissions by such time and subject

to such conditions as the Regulator may require;

(b) meet with other persons, on such terms as the Regulator may require, in

order to resolve any dispute amongst the parties;

(c) publish an acknowledgement and apology for specified acts or omissions

in a suitable public newspaper in such form and at such times as the

Regulator may require; or

(d) provide periodic reports to the Regulator to assist the Regulator in

monitoring compliance and assessing the impact on communications

markets, competitors and end users.

(2) If a licensee fails to comply with a written undertaking accepted by the

Regulator under sub-section (1), the Regulator may apply to a Court for an

order in accordance with this section.

(3) Upon application by a Regulator, if a Court is satisfied that a licensee has failed

to comply with a written undertaking accepted by the Regulator under sub-

section (1), the Court may make any or all of the following orders:

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(a) an order directing a licensee to comply with the written undertaking

accepted by the Regulator under sub-section (1);

(b) an order to pay an amount equal to the value of any financial benefit

obtained by the licensee as a result of its failure to comply with the

written undertaking accepted by the Regulator under sub-section (1);

(c) an order to compensate a person for any loss or damage incurred as a

direct result of the failure by the licensee to comply with the written

undertaking accepted by the Regulator under sub-section (1); or

(d) any other order the Court considers appropriate.

164 Desist orders and remedial directions

(1) Subject to sub-sections (2) and (3), the Regulator may issue a desist order
(requiring that a person desist from specified conduct) or a remedial direction

(requiring that a person undertake specified action) if the Regulator is satisfied

that the person:

(a) has contravened, or is acting in contravention of, this Act or any

instrument made under this Act (other than guidelines);

(b) is using an apparatus that is likely to cause undue interference with any

radiocommunication service used for the purposes of any emergency

service or for any purpose on which the safety of any person or of any

vessel, aircraft or vehicle may depend; or

(c) is operating a particular facility or providing a particular service that is

likely to cause interference that will endanger health or safety or will

compromise network security or integrity.

(2) Before issuing a desist order or remedial direction to a person, the Regulator
shall serve notice on that person:

(a) stating the facts constituting the alleged activity and, where appropriate,

the name of the person against whom the allegation is made; and

(b) specifying a reasonable period within which and a place at which a

hearing is to be held to provide the person concerned an opportunity to

show good cause why the order shall not be made.

(3) If at a hearing referred to in sub-section (2)(b):

(a) the person concerned fails to show good cause why the desist order or

remedial direction shall not be made, the Regulator may issue that order

or direction; or

(b) the Regulator is satisfied that the person concerned has shown good

cause why the desist order or remedial direction shall not be made, the

Regulator shall not issue that order or direction.

(4) An order or direction under sub-section (1) shall:

(a) contain a statement of the facts referred to in sub-section (2)(a);

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(b) in the case of a desist order, require the person concerned to desist from

the specified conduct;

(c) in the case of a remedial direction, require the person to undertake

specified action;

(d) be accompanied by documents in support of the allegation; and

(e) be served on the person who is the subject of the desist order or remedial

direction.

(5) If the Regulator issues a person a desist order or remedial direction under this
section, that person shall comply with the desist order or remedial direction.

165 Third party actions

(1) A person who has sustained loss or damage as a result of the conduct of another

person that amounted to a contravention of this Act or any instrument made

under this Act (other than guidelines) may, in a Court of competent jurisdiction,

recover the amount of loss or damage by action against the person in

contravention of the Act or any other person involved in the contravention.

(2) Proceedings under this section may be commenced by the Regulator, as

representative of a class of persons suffering loss or damage.

(3) The Regulator may, subject to any conditions imposed by the court, intervene

in any proceeding instituted under sub-section (1).

166 Offence by body corporate

If a body corporate commits an offence under this Act or its subsidiary legislation, a

person who at the time of the commission of the offence was a director, chief

executive officer, manager, secretary, or other similar officer of the body corporate or

was purporting to act in any such capacity or was in any manner or to any extent

responsible for the management of any of the affairs of the body corporate or was

assisting in such management:

(a) may be charged jointly or severally in the same proceedings with the body

corporate; and

(b) if the body corporate is found guilty of the offence, shall be deemed to be guilty

of that offence unless, having regard to the nature of the person’s function in

that capacity and to all circumstances, the person proves:

(i) that the offence was committed without the person’s knowledge, consent

or connivance; and

(ii) that the person had taken all reasonable precautions and exercised due

diligence to prevent the commission of the offence.

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167 Liability for acts of employees and agents

If any person would be liable under this Act to any punishment or penalty for an act,

omission, neglect or default, that person shall be liable to the same punishment or

penalty for every such act, omission, neglect or default of any employee or agent of

the person’s, or of the employee of the agent, if the act, omission, neglect or default

was committed:

(a) by that person's employee in the course of the employee’s employment;

(b) by the agent when acting on behalf of that person; or

(c) by the employee of the agent in the course of the employee’s employment by

the agent or otherwise on behalf of the agent acting on behalf of that person,

unless, having regard to the nature of the person’s function in that capacity and

to all circumstances, the person proves:

(d) that the offence was committed without the person’s knowledge, consent or

connivance; and

(e) that he had taken all reasonable precautions and exercised due diligence to

prevent the commission of the offence.

168 General information gathering power

(1) The Regulator may from time to time by written notice, for the purposes of

performing its functions, exercising its powers or discharging its duties under

this Act, order a licensee to (on a once-off or period basis):

(a) keep specified records or prepare specified reports (including reports

prepared for the purpose of publication); and

(b) produce those records or reports to the Regulator.

(2) The Regulator shall ensure that:

(a) a notice under sub-section (1) specifies:

(i) a statement that the notice is an order under this section;

(ii) the timeframe (or timeframes) by which the licensee shall provide

the information; and

(iii) the manner and form in which the information shall be provided;

and

(b) the timeframe (or timeframes) under subsection (2)(a)(ii) provide the

licensee a reasonable time to prepare and produce any records or reports

required by the notice.

(3) A licensee in receipt of a notice issued by the Regulator in accordance with sub-

section (1) shall ensure that it complies with the requirements of the notice

within the specified timeframe.

(4) Subject to sub-sections (5) and (6), a licensee that:

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(a) contravenes sub-section (3); or

(b) wilfully or through gross negligence provides false or misleading

information to the Regulator in response to a notice issued by the

Regulator in accordance with sub-section (1),

shall have contravened this Act.

(5) Sub-section (3) does not apply to a licensee that is not capable of complying

with a notice issued to it by the Regulator under sub-section (1).

(6) Nothing in this section requires a licensee to produce a document that would

disclose information that is the subject of legal professional privilege.

(7) The Regulator shall:

(a) only use information obtained under this section for the purposes of

performing its functions, exercising its powers or discharging its duties

under this Act;

(b) subject to paragraph (c), keep any information obtained under this

section confidential and not disclose that information without the consent

of the provider, except:

(i) for the purposes of performing its functions, exercising its powers

or discharging its duties under this Act;

(ii) with the consent of the licensee that provided the information; or

(iii) where the Regulator is otherwise permitted by this Act or is

required by law to disclose that information; and

(c) deal with sensitive information obtained under this section in accordance

with section 24.

(8) A person is not excused from furnishing information or producing a document

in pursuance of this section on the ground that the information or document

may tend to incriminate the person, but such information or document is not

admissible in evidence against the person in criminal proceedings other than

proceedings under, or arising out of, this section.

169 Investigatory power

(1) Where the Regulator has a reasonable belief that a person is capable of
providing information, producing documents or giving evidence in relation to

a possible contravention of this Act (possible contravention), the Regulator

may provide the person with a notice requiring it to:

(a) produce documents or other written information; or

(b) appear before the Regulator to give evidence orally.

(2) The Regulator shall:

(a) ensure that a notice under sub-section (1)(a) specifies:

(i) a statement that the notice is an order under this section;

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(ii) the provision of this Act to which the possible

contravention relates;

(iii) the timeframe (or timeframes) by which the person shall provide

the information; and

(iv) the manner and form in which the information shall be provided;

(b) ensure that a notice under sub-section (1)(b) specifies:

(i) the matters referred to in paragraphs (a)(i) and (ii);

(ii) a timeframe during which the person shall appear before the

Regulator; and

(iii) the manner and form in which the information shall be provided;

(c) ensure that:

(i) any timeframe under subsection (2)(a)(iii) provides the person a

reasonable time to produce any documents or written information

required by the notice; and

(ii) any timeframe under subsection (2)(b) provides the person a

reasonable opportunity to prepare evidence, seek legal

representation and appear before the Regulator; and

(d) allow a law practitioner to appear for or represent any person required to
appear before the Regulator to give evidence under subsection (1)(b).

(3) A person in receipt of a notice issued by the Regulator in accordance with sub-

section (1) shall ensure that it complies with the requirements of the notice

within the specified timeframe.

(4) Subject to sub-sections (5) and (6), a person that:

(a) contravenes sub-section (3); or

(b) wilfully or through gross negligence provides false or misleading

information to the Regulator in response to a notice issued by the

Regulator in accordance with sub-section (1),

shall have contravened this Act.

(5) Sub-section (3) does not apply to a person that is not capable of complying with

an order issued to it by the Regulator under sub-section (1).

(6) Nothing in this section requires a person to produce a document that would

disclose information that is the subject of legal professional privilege.

(7) The Regulator shall:

(a) subject to paragraph (b), keep any information obtained under this

section confidential and not use or disclose that information except:

(i) for the purpose of:

(A) exercising its powers under sections 159, 160, 161, 162, 163

or 164 in relation to the possible contravention; or

(B) an investigation into the possible contravention;

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(ii) with the consent of the person who provided the information; or

(iii) where the Regulator is otherwise permitted by this Act or required

by law to disclose that information; and

(b) deal with sensitive information obtained under this section in accordance

with section 24, except that the Regulator may disclose sensitive

information:

(i) for the purpose of exercising its powers under sections 159,

160, 161, 162, 163 or 164 of this Act; or

(ii) for the purpose of an investigation into the possible contravention,

provided that:

(A) prior to disclosing the information, the Regulator consults

with the person who provided the information; and

(B) the Regulator takes reasonable steps to ensure that sensitive

information is not disclosed to a competitor of a person to

which the sensitive information relates.

(8) A person is not excused from furnishing information or producing a document

in pursuance of this section on the ground that the information or document

may tend to incriminate the person.

(9) A person who without lawful authority discloses:

(a) the fact that a notice under this section has been made; or

(b) anything done (including the fact that any information has been provided

to the Regulator) under a notice under this section, before the earlier of:

(c) the commencement of an enforcement action under sections 159, 160,

161, 162, 163 or 164 of this Act in relation to the possible

contravention; or

(d) receipt of a written notice from the Regulator that the investigation into

the possible contravention has ended,

commits an offence and shall be liable upon conviction to a fine not

exceeding shall, on conviction, be liable to a fine not exceeding $10,000

or to a term of imprisonment not exceeding 3 years or both.

170 Right of entry for inspection

An authorised officer of the Ministry or Regulator may, under a warrant issued by a

Magistrate, enter any premises and may:

(a) search the premises;

(b) inspect and take photographs or make sketches;

(c) inspect any book, record, document, database, or electronic file kept at the

premises; or

(d) remove or make copies of any book, database, or electronic file,

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to the extent that it is reasonably necessary to ascertain whether there has been

compliance with the provisions of this Act, the Telegraph Act or other

applicable laws.

171 Offence related to searches and seizures

Where an authorised officer of the Ministry or Regulator has reasonable grounds for

suspecting that there may be on or in any premises a particular thing that may provide

evidence regarding an offence under this Act, the Telegraph Act (Cap. 99), the Tonga

Communications Corporation Act 2000 or any other law, the authorised officer may,

under a warrant issued by a Magistrate, search the premises and seize the thing.

172 Ministry may authorise release of things seized

(1) The Ministry may authorise any thing seized by an authorised officer of the

Ministry under section 171 to be released to the owner, or to the person from

whom the thing was seized, either unconditionally or on such conditions as the

Ministry thinks fit.

(2) The Regulator may authorise any thing seized by an authorised officer of the

Regulator under section 171 to be released to the owner, or to the person from

whom the thing was seized, either unconditionally or on such conditions as the

Regulator thinks fit.

DIVISION 3 – SAFE HARBOUR PROTECTIONS

173 Providing access or transmission

(1) An access service provider is not liable (by either civil or criminal action) for
providing access to or transmitting computer data, provided that the access

service provider does not:

(a) initiate the transmission;

(b) select the receiver of the transmission; or

(c) select or modify the computer data contained in the transmission.

(2) For the purposes of sub-section (1), providing access to or transmitting
computer data includes the automatic, intermediate and transient storage of

computer data for the primary purpose of providing access to or transmitting

the computer data provided that the computer data is not stored for any period

longer than is reasonably necessary for the provision of access to, or the

transmission of, that computer data.

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174 Hosting content

(1) A hosting service provider is not liable (by either civil or criminal action) in
relation to computer data stored or transmitted at the request of a user, provided

that the hosting service provider:

(a) as soon as practicable after receiving an order of a competent Court to

remove or disable access to specific computer data, removes or disables

access to that computer data;

(b) as soon as practicable after becoming aware (other than by order of a

competent Court) that it is storing computer data which it has reasonable

grounds to believe is unlawful to possess, access, distribute or publish

under the laws of the Kingdom, notifies Tonga Police of the existence

and location of the computer data (along with the grounds that have led

the hosting service provider to notify Tonga Police about this computer

data); and

(c) as soon as practicable after it gains actual knowledge, or knowledge of

facts or circumstances from which it is readily apparent, that it is storing

computer data that infringes a person’s intellectual property rights,

removes or disables access to that computer data.

(2) Sub-section (1) shall not apply where the relevant user is acting under the
authority or control of the hosting service provider.

175 Caching

A caching service provider is not liable (by either civil or criminal action) for the

automatic and temporary storage of computer data originating from another person or

the transmission of that data to a third person upon that third person’s request,

provided that:

(a) the caching service provider does not modify the computer data;

(b) where the computer data is subject to any access conditions, such as a

requirement to pay a fee or enter a password to access the computer data, the

caching service provider does not transmit a significant part of that computer

data to persons who have not met those access conditions;

(c) the caching service provider complies with rules about the updating of the

computer data specified in a manner widely recognised and used by industry;

(d) the caching service provider does not interfere with the lawful use of

technology, widely recognised and used by industry, to obtain data on the use

of the computer data; and

(e) the caching service provider acts expeditiously to remove or to disable access

to the computer data it has stored upon obtaining actual knowledge of the fact

that the computer data, at the initial source of transmission, has been removed

or access to it has been disabled or that a competent Court has ordered such

removal or disablement.

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176 Linking

A person who links end users to computer data provided by a third person, including

by means of a hyperlink, URL, search results, directory, index or other reference (link

provider), is not liable (by either civil or criminal action) for providing that link,

provided that the link provider:

(a) as soon as practicable after receiving an order of a competent Court to remove

or disable access to a specific link, removes or disables that link;

(b) as soon as practicable after becoming aware (other than by an order of a

competent Court) that it is providing a link to computer data that it has

reasonable grounds to believe is unlawful to possess, access, distribute or

publish under the laws of the Kingdom, notifies Tonga Police of the existence

and location of that computer data (along with the grounds that have led the

link provider to notify Tonga Police about this computer data) and removes or

disables that link; and

(c) as soon as practicable after it gains actual knowledge, or knowledge of facts or

circumstances from which it is readily apparent, that it is linking to computer

data that infringes a person’s intellectual property rights, removes or disables

that link.

177 No liability for removing or disabling access

Providers are exempt from all liability to their relevant end users in connection with

the removal or disabling of access to computer data in good faith in accordance with

this Division or pursuant to an order of a competent Court.

178 No monitoring obligation

Unless otherwise required by law or an order of a competent Court, providers have no

general obligation to monitor the computer data they transmit, store on behalf of

another, or link to, nor do they have a general obligation to actively seek facts or

circumstances indicating illegal activity or activity that infringes a person’s

intellectual property rights to avoid liability.

179 Definitions

For the purposes of this Division:

(a) "access service provider" means a person (including an internet service

provider) who supplies, or proposes to supply, a communication service to the

public either by carrying communications provided by or to a user of the

communications service or by providing access to a communications network;

(b) "caching service provider" means a person who provides a service that

involves the automatic and temporary storage, in the Kingdom, of computer

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data originating from another person so that the computer data might be

transmitted to a third person upon that third person’s request;

(c) "intellectual property rights" means a right given to a person under the

sections 6, 7, 22, 33 or 25 of the Copyright Act 2002 and such other rights as

the Minister may determine by declaration;

(d) "link provider" has the meaning given in section 176; and

(e) "provider" means an access service provider, a caching service provider, a

hosting service provider or a link provider.

DIVISION 4 - REVIEW MECHANISMS

180 Review options

(1) Subject to sub-section (2), a person directly affected by a reviewable decision

may apply:

(a) for reconsideration of the decision under section 181;

(b) for a review of the decision under section 183; or

(c) to a Court for judicial review of the reviewable decision.

(2) A person may not apply to the Court in respect of a reviewable decision:

(a) if the person has not applied for review of the decision under section 183;

or

(b) if the person has applied for review of the decision under section 183and

the appeals panel has not yet made a decision under section 183(9).

(3) A reviewable decision is one of the following:

(a) a decision to refuse to grant a network operator licence under section 32;

(b) a decision to impose a special licence condition under section 34;

(c) a decision to suspend or revoke, or amend the special licence conditions

of, a network operator licence under section 38;

(d) a decision to refuse to register a person as a service provider under

section 41;

(e) a decision to de-register or suspend the registration of a service provider

under section 44;

(f) a direction requiring a licensee to supply a requested communications

service under section 84;

(g) a decision to suspend, revoke or refuse to grant a radio spectrum licence

under the radio spectrum rules;

(h) a decision not to grant consent for a licensee to acquire a prohibited

interest under section 120(5);

(i) a decision not to grant an authorisation under section 121(1);

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(j) a decision to direct a licensee to amend an agreement under

section 134(1);

(k) a decision to approve or reject a proposed reference offer under

section 136(4);

(l) a decision to determine an approved reference offer or direct a licensee

to take specified action under section 136(6);

(m) a decision to approve a variation to a reference offer under

section 137(3)(b);

(n) a decision to issue an infringement notice under section 162;

(o) a decision to issue a desist order or remedial direction under section 164;

or

(p) any other decision specified as a reviewable decision in a declaration

made by the Minister.

(4) A reviewable Ministerial decision is one of the following:

(a) a decision to approve or reject recommendations of the Regulator under

section 73(4) (in relation to number portability); or

(b) a decision to accept or reject a declaration recommendation.

181 Reconsideration of decisions by the Regulator

(1) A person directly affected by a reviewable decision of the Regulator may apply

to the Regulator for reconsideration of the decision within 10 business days of

the decision of which reconsideration is sought being notified to that person.

(2) An application under sub-section (1) shall specify:

(a) the decision of the Regulator to which the application relates;

(b) the reasons for which the reconsideration is sought; and

(c) the decision sought on reconsideration.

(3) The Regulator shall, within 20 business days from receipt of an application

under sub-section (1), consider the application and notify the applicant as to

whether the decision will be reconsidered.

(4) If the applicant has not received a response to the application within 20 business

days after the filing of an application for reconsideration of a decision, the

Regulator shall be deemed to have affirmed the decision in respect of which the

application for reconsideration was made.

(5) If the Regulator decides to reconsider the decision, it shall comply with the

same procedures (such as consultation and preparation of a draft decision)

required to be complied with when the decision was first made.

(6) A decision under reconsideration shall continue in force during the

reconsideration unless the Regulator elects to suspend the commencement of

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the decision by notifying the person who made the application under subsection

(1) and any other person directly affected by the decision of that suspension.

182 Appeals panel

(1) The Ministry shall, upon the recommendation of the Attorney-General and

Lord Chief Justice, establish a register of experts who shall be available to act

as members of an appeals panel constituted under section 183.

(2) The Ministry shall ensure the register of experts comprises at all times at least

three persons who collectively have commercial, technical, economic and legal

expertise in the field of communications.

(3) The Ministry may only appoint a person to the register of experts if the person:

(a) meets the eligibility criteria to be appointed as a Commissioner under the

Communications Act;

(b) has at least 10 years international experience in the regulation of

communications markets; and

(c) is not a member, officer, employee, agent, external adviser or consultant

of the Regulator, Ministry or a licensee and has not been such a person

for at least 12 months.

(4) The Ministry shall remove a person from the register of experts if the person

no longer meets the criteria for appointment under sub-section (3) or if

requested by the person.

(5) The Ministry shall act as the secretariat for the appeals panel and shall publish

the membership of the register of experts.

183 Review of a decision by the appeals panel

(1) Subject to sub-section (2), a person directly affected by a reviewable decision

may apply to the secretariat of the appeals panel for review of the decision.

(2) A person may only apply to the secretariat of the appeals panel for review of a

reviewable decision under section 180(3)(a), (d) or (n) if the person has applied

to the Regulator for reconsideration of the decision under section 182(1) and

the Regulator has either:

(a) notified the applicant as to whether the decision will be reconsidered

under section 181(3); or

(b) the Regulator has been deemed to have affirmed the decision under

section 181(4).

(3) An application under sub-section (1) shall:

(a) specify the decision to which the application relates;

(b) specify the reasons why the review is sought and the outcome sought

from the appeals panel; and

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(c) be submitted to the secretariat within 20 business days of publication of

the decision.

(4) On receipt of a valid application for review under sub-section (1), the secretariat

shall refer the application to the Attorney-General, who shall select a panel

(appeals panel) comprising a member or members from the register of experts

having regard to:

(a) the suitability of the expert to hear the subject matter of the review; and

(b) the availability of the expert.

(5) If more than one member is appointed to the appeals panel, the Attorney

General shall designate one member of the panel as the Chair whose opinion

shall determine the review in the event of a tie.

(6) The appeals panel:

(a) shall give a copy of the application for review to the Regulator and any

persons directly affected by the decision under review and any other

person who made a submission to the Regulator in a consultation relating

to the decision;

(b) provide persons likely to be affected by the Regulator’s decision a

reasonable opportunity to make submissions on the matter;

(c) may determine an application on the papers or convene a hearing in

person or by teleconference or other means that permits all those

participating to communicate with each other simultaneously

and instantaneously;

(d) shall make a decision within 60 business days of being selected under

sub-section (4); and

(e) in all other matters, may determine their own procedures as they see fit,

provided that such procedures do not give one person affected by the

decision an advantage over any other person affected by the decision.

(7) An review shall be by way of rehearing on the evidence before the Regulator.

The appeals panel:

(a) shall take into account information previously provided to the Regulator

and information submitted under sub-section (6)(b) where that updates

the information previously provided to the Regulator; and

(b) may, in exceptional circumstances, take into account new information

submitted by a party to the review.

(8) The appeals panel may stay the operation of the decision while considering the

application.

(9) The appeals panel may, by written notice, do one of the following:

(a) affirm the decision under review;

(b) set aside the decision under review and refer the matter back to

the Regulator;

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(c) vary the decision under review; or

(d) set aside the decision under review and make their own decision, which

shall be treated as a decision of the Regulator.

(10) The appeals panel shall give a copy of its decision and the reasons for the

decision to the Regulator and each person directly affected by the decision.

(11) The Regulator shall publish any decision and the reasons for the decision given

to it under sub-section (10) within 5 business days of receiving the decision.

(12) The costs of the appeals panel in conducting the review (including, but not

limited to, any travel or other expenses incurred by or on behalf of the appeals

panel in connection with the review) shall be borne by the person making the

application for review.

(13) The appeals panel may make a costs order in exceptional circumstances and, if

no such order is made, each party shall bear its own legal costs.

(14) A decision of the appeals panel is final and binding, subject to section 180(1)(c).

184 Review of reviewable Ministerial decisions

A person directly affected by a reviewable Ministerial decision may apply to the

secretariat of the appeals panel for review of the decision in accordance with the

procedure set out in section 183, except that:

(a) references to the Regulator in section 183 will be read as references to the

Minister; and

(b) the appeals panel shall not have the powers under sections 183(9)(c) or (d).

185 Service of notices

Unless otherwise expressly provided in this Act, any document required or authorised

by this Act to be provided to or served on any person, may be provided or served on

the person concerned by:

(a) delivering it to the person or to some adult member or employee of that person’s

family at the person’s last known residence;

(b) leaving it at that person’s usual or last known residence or place of business in

a cover addressed to the person;

(c) affixing it to some conspicuous part of that person’s last known residence;

(d) sending it by registered post addressed to that person at that person’s usual or

last known residence or place of business; or

(e) where the person is a body corporate:

(i) delivering it to the secretary or other similar officer of the body corporate

at its registered or principal office; or

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(ii) sending it by registered post addressed to the body corporate at its

registered or principal office.

DIVISION 5 - REGULATIONS AND TRANSITIONAL PROVISIONS

186 Regulations

The Minister may, subject to the approval of the Cabinet, make regulations, which are

not inconsistent with this Act and other laws, prescribing any or all matters which by

this Act are required or permitted to be prescribed for carrying out or giving effect to

this Act, or for the conduct of the business of the Ministry or the licensees.

187 Licence transition

(1) Subject to sub-section (3), a person (existing licensee) that, immediately before

the commencement of this section, held a licence under Part V (existing

licence) or was registered as engaging in an activity requiring a class licence

under Part V (existing registration) shall:

(a) be entitled to continue to provide such services as permitted by that

existing licence or because of that existing registration in accordance

with, and on the terms of, that existing licence or existing registration;

(b) in respect of a person that, immediately before the commencement of this

section, held an existing licence, be deemed to be a network operator for

the purposes of this Act (except for the purposes of section 36 and the

definition of "requesting licensee");

(c) for a period of 2 years after the commencement of this section be entitled

to request a network operator licence or registration as a service provider

under Part V such that the person shall be authorised to continue to

provide the same communications services as the person provided

immediately before the commencement of this section; and

(d) where the person requests a network operator licence or registration as a

service provider under paragraph (c), be deemed to be financially and

technically capable of meeting its legislative and regulatory obligations.

(2) An existing licence or existing registration that was in effect immediately

before the commencement of this section shall be automatically revoked or de-

registered (as applicable) if the person granted that licence or that registration

either is granted a network operator licence or is registered as a service

provider.

(3) An existing licensee who is not required to hold a network operator licence or

register as a service provider under section 26 may surrender their existing

licence or withdraw their existing registration (as applicable) by written notice

to the Regulator.

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(4) The Minister may, by declaration, extend the period under sub-section (1)(c)

for a period of not greater than 2 years.

(5) Sections 25, 38, 37 and 44 of the Act will remain in force as they existed prior

to the commencement of this section until all existing licences have been

revoked (or have expired) and all existing registrations have been withdrawn

(or have expired).

188 Other transitional arrangements

(1) The Minister may make regulations under section 186 dealing with transitional

arrangements, including but not limited to:

(a) the transition of licences and registrations as described under section

187; and

(b) funding and administrative arrangements necessary or desirable to

ensure transition of the functions of the Regulator from the Ministry to

the Communications Commission.

(2) The Minister may, by declaration, deem a consultation to have been carried out

under section 23 on a particular matter where the Minister is satisfied that

reasonable consultation on that matter has occurred before the commencement

of this section.

189 Repeal

The Communications Act 2000 shall be repealed on the date this Act comes into force.






Passed by the Legislative Assembly this 6th day of October 2015.




























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SCHEDULE 1

STANDARD LICENCE CONDITIONS

No. Summary Standard licence conditions

1. Licensee shall comply

with the provisions of this

Act and other instruments

made under the Act

The network operator shall comply with:

(a) this Act;

(b) any subordinate legislation and
regulations made under this Act; and

(c) any rules, standards, declarations,
orders, or any other instrument (other
than guidelines) the
Regulator or Minister is permitted to

make under this Act (including the

National Spectrum Plan, numbering

plan and universal service regime).

2. Shall comply with
international
conventions/agreements

The network operator shall perform and

observe the requirements of international

conventions and agreements relating to

communications facilities, communications

services and radio frequency spectrum to

which Tonga is a party, except to the extent

that the Ministry may, by declaration, exempt

the network operator from that compliance.

3. Licensee shall indemnify

the Government

The licensee shall indemnify the Government

against any actions, suits, claims or

proceedings arising out of or in relation to any

breaches or failings on the part of the

licensee.

4. Shall provide free

services to the King

The network operator shall ensure that any

telephony, internet access services and other

communications services provided by the

licensee to His Majesty are provided free of

charge.

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5. Shall allow connection of

customer equipment on

terms consistent with Act

The network operator shall allow any person

to connect customer equipment to its network

facilities on such terms and conditions as the

network operator may determine provided

that the terms and conditions are consistent

with this Act and any subordinate legislation,

regulations or instruments made under the

Act.

6. Shall take all proper and

adequate safety

measures to safeguard

life or property

The network operator shall, in respect of all

communications facilities, take all proper and

adequate safety measures to safeguard the

life or property, including exposure to any

electrical emission or radiation emanating

from the apparatus, equipment or installations

so used.

























































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SCHEDULE 2

STANDARD SERVICE PROVIDER CONDITIONS



No. Summary Service provider conditions

1. Licensee shall comply with

the provisions of this Act and

other instruments made

under the Act

The service provider shall comply with:

(a) this Act;

(b) any subordinate legislation and
regulations made under this Act;
and

(c) any rules, standards, declarations,

orders, or any other instrument

(other than guidelines) the

Regulator or Minister is permitted

to make under this Act (including

the National Spectrum Plan,

numbering plan and universal

service regime).

2. Shall comply with
international
conventions/agreements

The service provider shall perform and

observe the requirements of international

conventions and agreements relating to

communications facilities, communications

services and radio frequency spectrum to

which Tonga is a party, except to the

extent that the Ministry may in writing

exempt the service provider from such

compliance.

3. Licensee shall indemnify the

Government

The service provider indemnifies the

Government against any actions, suits,

claims or proceedings arising out of or in

relation to any breaches or failings on the

part of the service provider.

4. Shall provide free services to

the King

The service provider shall ensure that any

telephony, internet access services and

other communications services provided

to His Majesty are provided free of charge.

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5. Shall allow connection of

customer equipment on

terms consistent with Act

The service provider shall allow any

person to connect customer equipment to

a network operator’s network facilities on

such terms and conditions as the network

operator may determine provided that the

terms and conditions are consistent with

this Act and any subordinate legislation,

regulations or instruments made under the

Act.

6. Shall take all proper and

adequate safety measures

to safeguard life or property

The service provider shall, in respect of all

network facilities, take all proper and

adequate safety measures to safeguard

the life or property, including exposure to

any electrical emission or radiation

emanating from the apparatus, equipment

or installations so used.

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